Lords Sitting of 27 March 1990

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers-Read by The Lord Bishop of Chelmsford.

Environment Policy: M.3 Route Decision
Lord Hunt Lord Hunt asked Her Majesty's Government:
Whether they will take steps to improve co-ordination of their environmental policies in pursuance of their commitment to environmental protection and in the light of their decision to construct a bypass through Twyford Down, an area of outstanding natural beauty.
Viscount Davidson: My Lords, protecting and enhancing the environment is a major feature of the Government's road building plans. The joint regional offices of the Departments of Environment and Transport ensure full co-ordination of the environmental aspects of scheme design. A series of measures to enhance the environmental treatment of schemes has recently been announced.
The decision on the M.3 Winchester bypass was taken jointly by the Secretaries of State for Environment and Transport. It will improve the environment by removing the existing Winchester bypass to restore a link between Winchester and St. Catherine's Hill.
Lord Hunt: My Lords, I thank the noble Viscount for that Answer. Will he accept my realisation that a most difficult problem was posed for his right honourable friends? However, given the nature and scale of the damage that can and has been caused by the Department of Transport's road infrastructure programme in terms of the countryside and air pollution and given also growing public concern for the environment, together with the Prime Minister's explicit support for green policies, does he agree that it is desirable to review and perhaps revise existing road transport development, particularly in regard to sensitive areas which are governed by circulars issued about 13 years ago? Does he further agree that it is desirable that fresh consideration should be given at Cabinet level to effective co-ordination of environmental policy as a whole?
Viscount Davidson: My Lords, the last part of the noble Lord's question is outside the scope of what I can helpfully say to the House today. But I certainly take note of the noble Lord's remarks. I confirm that the Government are well aware of the need to take fully into account environmental issues when planning motorway developments. As to the M.3 decision, I can tell the House that the overall plan will restore more downland habitat than is taken by the motorway. Indeed, there will be a possible net gain to the area of the SSSI.
Lord Boyd-Carpenter: My Lords, is my noble friend aware that, notwithstanding the considerations mentioned by the noble Lord, Lord Hunt, many who live in Hampshire regard this decision as both inevitable and right if proper use is to be made of the motorway with traffic concentrated on it and not dispersed over the countryside?
Viscount Davidson: My Lords, I can only agree with my noble friend.
Lord Hatch of Lusby: My Lords, the noble Viscount said that the Government's road plans are part of their environmental policy, or words to that effect. How does he reconcile the plans for a widespread increase in roads that have been announced with the Government's apparent approval of the necessity to limit carbon dioxide emissions, which are bound to be increased as a greater number of automobiles use the roads?
Viscount Davidson: My Lords, that is another question. I said in my original Answer that protecting and enhancing the environment is a major feature of the Government's road building plans. When building roads, we make sure that the environment is protected.
Lord Molloy: My Lords, will the noble Viscount rethink his answer to the supplementary question of the noble Lord, Lord Hunt? He said that it was apparently irrelevant to the Question on the Order Paper. Did not the noble Lord's question relate to the Government's environmental policy in regard to preserving certain parts of the land? Does he agree that what the noble Lord said is strictly relevant to that part of the Question in which we are all interested?
Viscount Davidson: My Lords, can the noble Lord say whether he was referring to the noble Lord, Lord Hunt, or to his noble friend Lord Hatch?
Lord Molloy: My Lords, I was referring to the question of the noble Lord, Lord Hunt.
Viscount Davidson: My Lords, I thought that I gave a very satisfactory answer.
Lord Brougham and Vaux: My Lords, does my noble friend agree, bearing in mind what was said by the noble Lord, Lord Hunt, that if the bypass were not built the environmental impact on Winchester and its cathedral would be even greater and the traffic would become more dangerous?
Viscount Davidson: My Lords, my noble friend makes a very good point.
Lord Hunt: My Lords, confirming what was said by the noble Lord, Lord Molloy, will the noble Viscount accept that the main point of my Question was to inquire about the effective co-ordination of the Government's plans for the environment?
Viscount Davidson: Yes, my Lords. I agreed with the noble Lord that there must be effective

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co-ordination between the two departments. In this instance there has been.
Lord Carmichael of Kelvingrove: My Lords, does the noble Viscount accept that we on this side of the Houseߝor perhaps I should say the whole House—realise that there are great difficulties and problems about this matter, particularly when the estimates are considered? It costs something like £90 million more to drive a tunnel compared with building a cut bypass. Does he agree with evidence, from newspapers and other sources, of a strong feeling that, rightly or wrongly, there has not been the co-operation between the Department of Transport and the Department of the Environment that he suggested? If there is disagreement, is it not the case that, because of the financial aspect, the Department of Transport wins every time? At this late date will the Minister persuade his two right honourable friends to get their heads together to see whether another decision can be reached? Will he assure us that the decision was based solidly on the environmental issue?
Viscount Davidson: My Lords, there is no need to persuade my right honourable friends on that. The decision on this matter was taken jointly by both of my right honourable friends in line with the recommendations of two independent inspectors following two public inquiries in 1985, and 1987 to 1988. My right honourable friends rely very much on the reports of the' inspectors. Both Secretaries of State are in agreement that published proposals should be built in preference to any of the 40 alternatives considered.
Lord Hatch of Lusby: My Lords, the noble Viscount made a general statement. He told the House that in their road building plans the Government were taking into consideration environmental issues. How are they taking environmental issues into consideration if they are making provision for what I believe is a 140 per cent, increase in the number of cars on the roads?
Viscount Davidson: My Lords, that is another question. In this instance I am talking about environmental issues on the ground. However, if the noble Lord wishes to put down a Question I shall certainly answer it.
Lord Hankey: My Lords, are the Government aware that an enormous number of motorists who travel to Hampshire almost every day or fairly frequently will be extremely relieved that the Government have had the guts to reach a decision on this difficult question after such a long delay?
Viscount Davidson: My Lords, I am grateful to the noble Lord. The original plan was published in 1968–22 years ago. I believe that the House will agree that it is time a decision was taken.
Lord Tordoff: My Lords, with all due respect to the noble Viscount, does he not consider that the Question refers to wider issues than the answers that he has given indicate? Does not the Question refer
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to improving the co-ordination of environmental policies? Does that not imply that the Government should consider environmental policies as part of the overall transport policy? In other words, people should be encouraged to travel on trains rather than putting more cars on the roads.
Viscount Davidson: My Lords, the noble Lord refers to travel on trains. That is such a different issue. It also goes far wide of the detailed latter part of the Question which refers to a bypass through Twyford Down.
Lord Hatch of Lusby: My Lords, that answer is just not good enough. It is not good enough for the House.
Noble Lords: Next Question!
Lord Hatch of Lusby: My Lords, the noble Viscount has answered the Question in general terms, but it asks specifically about the necessity for co-ordination of environmental policies. That is what some of us have been asking about. The noble Viscount answered that point and I challenged his Answer. I asked him to explain how it is possible to square the Answer with the co-ordination of environmental policies.
Viscount Davidson: My Lords, my Answer was not good enough for the noble Lord, Lord Hatch, but I think it was good enough for the House.
Noble Lords: Hear, hear!

Cosmetics Testing upon Animals
2.46 p.m.
The Earl of Haddington The Earl of Haddington asked Her Majesty's Government:
What actions they propose to take to prevent the implementation on completion of the single market of the draft EC directive intended to make compulsory the testing of cosmetics upon animals.
The Minister of State, Department of Trade and Industry (Lord Trefgarne): My Lords, Her Majesty's Government recognise that many people in the United Kingdom do not think that cosmetics should be tested on animals. We are therefore seeking to ensure that any increase in animal testing required by the proposed amendments to the Cosmetics Directive is kept to the essential minimum. Existing ingredients will not have to be tested on animals unless toxicologists are worried about them, and new ingredients will not have to be tested on animals if this is unnecessary, as in the case of bland "natural" ingredients.
The Earl of Haddington: My Lords, I am grateful for my noble friend's assurances on the subject. The vast majority of people in this country appear to be against animal testing, certainly for cosmetic products. It seems extraordinary that such ingredients as oil of rosemary or sandalwood, which

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are naturally occurring substances that have been used, for hundreds of years with no harm to people, should have to be tested on animals. Perhaps I may go on—
Noble Lords: Question!
Lord Trefgarne: My Lords, in reply to the first supplementary question of my noble friend, I very much agree with the point that he makes. Indeed it is changes in that direction that I believe we have achieved through discussions in Brussels.
Lord Stoddart of Swindon: My Lords, what on earth has the testing of cosmetics on animals to do with the single market? Is it not another instance of a polyglot bureaucracy imposing upon the people of this country standards that we simply will not accept? Is it not offensive to the animal lovers of this country that their interests and views should be submerged within the European bureacracy? I have said enough, my Lords.
Lord Trefgarne: My Lords, a cosmetics directive from the European Community has been in place since as far back as 1976. We are now discussing a new directive to amend and take forward the 1976 directive. The representations that we have made through our membership of the relevant committees in Brussels have moved the draft directive—that is all it is at the moment—in the right direction. We not only have to meet the proper aspirations of those who have understandable and quite proper concern about the testing of these products on animals; we also need to ensure that the cosmetics industry brings forward new products that are safe, and demonstrably so.
Baroness Phillips: My Lords, is the Minister aware that appeals must be made to women, who should be told not to buy cosmetics which have been the subject of experiments on animals? That is a powerful campaign which can succeed where governments and the EC cannot.
Lord Trefgarne: My Lords, I agree that it is a market matter. A number of firms are now marketing cosmetics about which they make a virtue of the fact that they have not been tested on animals. If people prefer to buy such cosmetics that is their undoubted right. However, the definition of cosmetics goes wider than preparations used by women. It includes items such as soap, toothpaste, shampoo and deodorant some of which I use.
Viscount Massereene and Ferrard: My Lords, is my noble friend aware that for many years we in Parliament have been debating the subject and the experimentation on tissues which will replace the necessity to use animals? Does he agree that to obey the EC regulation would be a backward step and would be appalling?
Lord Trefgarne: My Lords, I am sorry to have to tell my noble friend that it is not possible to obtain the necessary degree of confidence in the safety of
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products only by testing on tissues as he suggests. There are circumstances in which wider testing is required and, therefore, I am afraid that occasional testing on animals must take place. Noble Lords will be reassured to know that 99.5 per cent, of tests conducted in this country on live animals were connected with drugs and only 0.5 per cent, were connected with cosmetics.
Lord Williams of Elvel: My Lords, the Minister was kind enough to tell the House that he was born in Llandrindod Wells, and we are grateful for that information. Can he reassure the House that he knows that the sheep on the Welsh uplands are called the Welsh speckleface? Can he explain to the House what the effect of the directive will be on the specklefaced sheep? For instance, will they have to carry the deodorant which the noble Lord has said he uses or will they be required to wear lipstick? What will be the effect?
Lord Trefgarne: My Lords, I am happy to say that, as a result of the changes that we have secured in the proposed draft directive, the effects upon the Welsh sheep to which the noble Lord referred will be much less than otherwise.
The Earl of Lauderdale: My Lords, can the Minister say whether the directive is for or against red rouge for a bull?
Lord Trefgarne: My Lords, that particular detail has not yet come before the Council of Ministers.

Community Charge
2.53 p.m.
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
Whether they will issue guidance to local authorities on applying the standard community charge to buildings suddenly made empty by the death of the occupants.
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Hesketh): My Lords, in England and Wales, where a property is unoccupied because the owner has died, no standard charge is payable until three months after the grant of probate or letters of administration. Local authorities have the discretion to extend the period of relief beyond three months. Copies of the relevant order and explanatory information were sent to all charging authorities in England and Wales. In Scotland, as from 1st April 1990 the standard charge will not be payable for the first six months that a property is vacant as a result of the death of the occupant.
Lord Campbell of Croy: My Lords, I thank my noble friend for that Answer. Is he aware that in Scotland the standard charge is imposed from the day after a death, before relatives are able to go through personal possessions or dispose of furniture? Is he further aware that what was thought to be a set charge on second homes when the legislation was

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before this House is becoming an instant tax on empty buildings and that the amount is usually twice the previous domestic rates?
Lord Hesketh: My Lords, I hope that my noble friend is encouraged by the information which I provided about the situation from 1st April 1990. That answers the problem that he faced in the Highland region, but the matter is at the discretion of the local authority.
Baroness Phillips: My Lords, is the Minister aware that I have an example from Devon where a house was left after the death of one person and the community charge has been issued on two people?
Lord Hesketh: My Lords, in each case the local authority has an option to charge on five bands from zero to two. If it decides to charge at the rate of two, as happened in respect of the property in Devon, it is on the basis of its discretion. It is the case that after probate or letters of administration have been granted there is a further three months when no charge can be levied.
Lord Taylor of Gryfe: My Lords, is the Minister endeavouring to bring into harmony all such legislation between Scotland and England? Further, will he say that any changes in English legislation will be retrospective in their application in Scotland?
Lord Hesketh: My Lords, I have never been able to aspire to be a writer to the signet. However, there are differences between the legal systems north and south of the Border. I believe that there is no probate or letters of administration under Scottish law and therefore there is an anomaly. I know that many of your Lordships would defend the Scottish legal system to the death, but under it on this occasion it would be difficult to have an interface—to use a terrible word—because of the two different legal systems.
Lord Harmar-Nicholls: My Lords, while in no way deviating from the principle behind the community charge, which is sound and fair, does my noble friend agree that this is an anomaly which will be examined when a revision takes place next year in order to straighten out some of the quirks which will arise?
Lord Hesketh: My Lords, the Government have never suggested that they wished to tamper with the laws of Scotland, so there will always be anomalies.
Lord Carmichael of Kelvingrove: My Lords, can the Minister say whether the legislation which he says will apply in 1990 will be retrospective in Scotland, and if not, why not?
Lord Hesketh: My Lords, as with so many policies introduced by all governments, a modification to legislation is not always retrospective.
Lord Campbell of Croy: My Lords, is my noble friend aware that his announcement that there will be a code on both sides of the Border from April 1990 is welcome? However, is he also aware that
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England and Wales are benefiting from the experience of Scotland during the past year? Will he ask his right honourable friend the Secretary of State for Scotland to give guidance to local authorities there about how to deal with the cases which have arisen during the past few months and with which they are still grappling?
Lord Hesketh: My Lords, of course I shall draw my noble friend's remarks to the attention of my right honourable friend. However, it is important to remind the House that before the introduction of the community charge, if a property remained furnished, rates were payable from the time the occupant died. The proposals now before the House are an improvement in terms of fiscal loss.
Lord McIntosh of Haringey: My Lords, is this not one more example of the growing absurdity of the standard community charge? It is now clear that it will discriminate against student nurses as compared with trainees in the armed forces. It will also discriminate against single mature students and those in long-term stay in hospital. Can the Minister name a single day during the past month when a new absurdity in the concept of the charge was not revealed?
Lord Hesketh: My Lords, I assure the noble Lord that if we were about to introduce a system of rating there would be howls of protest about the levels of discrimination that cannot be conceived under the community charge.
Lady Saltoun of Abernethy: My Lords, will the Government bear in mind that in a failing property market it is not always possible to sell a house in six months or even longer?
Lord Hesketh: My Lords, I point out to the noble Lady that under the previous rating system, rates were payable from the estate from the date of death. What has happened now is an improvement because there will be a six-month period which will be community charge free.
Viscount Mountgarret: My Lords, when a property became unoccupied there was six months' leeway during which no rates were paid. Will not the same apply to the community charge?
Lord Hesketh: My Lords, the situation at present under the current arrangements is that a period of administration plus three months will be allowed, which in most cases will probably equate to six months or more.

Sterling: Devaluation
3.1 p.m.
Lord Donoughue Lord Donoughue asked Her Majesty's Government:
What has been the percentage devaluation in sterling against (i) the deutschemark and (ii) the US dollar since 1st January 1989.
The Paymaster General (The Earl of Caithness): My Lords, sterling has fallen just over 14 per cent, against the deutschemark and just under 11–5 per cent, against the US dollar since 1st January 1990.
Lord Donoughue: My Lords, I thank the noble Earl for that helpful and accurate reply. Bearing in mind that each 10 per cent, fall in sterling is calculated by economists to produce an increase in inflation of up to 3 per cent., will the Minister agree to take on a bet with me that at the year end the rate of inflation will, for the third year in succession, be higher than the Chancellor's Budget forecasts?
The Earl of Caithness: My Lords, I do not bet any more, although I should be tempted to take on a bet with the noble Lord. However, he will be the first to appreciate that the present underlying rate of inflation is lower than at any time under the previous Labour Government.
Lord Barnett: My Lords, does the Minister agree that there would be better prospects for a stable exchange rate if we were to join the exchange rate mechanism? Noting the Government's view that inflation is a key factor in their decision arising from the statement in Madrid, will the Minister confirm to us that the exchange rate level at any particular time will not be relevant to the decision and that the only relevant consideration will be the inflation rate?
The Earl of Caithness: My Lords, after Madrid my right honourable friend the Prime Minister clearly set out the exact terms under which we should enter the exchange rate mechanism. Those were repeated by my right honourable friend the Chancellor of the Exchequer in his Budget Statement.
I point out to the House that those advocates who support the exchange rate mechanism must remember that half of Britain's trade is outside the Community. Much of it is in US dollars and is therefore not affected by the exchange rate mechanism.
Lord Bruce of Donington: My Lords, does the noble Earl agree that even the existing rates of exchange against the dollar and the deutschemark have only been sustained after a net loss of reserves amounting to many billions of pounds? Does he also agree that some consideration should be given to a relief in the rate of interest at present subsisting coupled with a far more effective control of credit in the United Kingdom? Would not that be a far more sensible way of proceeding rather than allowing or proposing that the interest rate should take the whole strain in respect of both policies?
The Earl of Caithness: My Lords, as my right honourable friend the Chancellor of the Exchequer made clear in his Budget Statement, which I am sure the noble Lord has read with care, he looked at the question of whether some form of credit controls would be appropriate. He decided that they would not and that the interest rate was the most effective and direct method of bringing down inflation, which is the Government's overall concern.
Lord Stoddart of Swindon: My Lords, is the noble Earl aware that not everyone goes along with the new fashion of thinking that to join the ERM is the panacea for all ills? Is he further aware that some people believe that it would actually deter the growth of the British economy? Can the noble Earl tell the House at what rate against the deutschemark the Government propose to enter the ERM at this point in time?
The Earl of Caithness: My Lords, the noble Lord, Lord Stoddart of Swindon, is right to remind the House that to join the ERM is by no means a panacea. A tight monetary policy will still be needed. The right exchange rate at which to enter the ERM is a matter to be decided. It is important not only to bring down inflation in this country but also to ensure that other countries will fulfil their part of the bargain as set out in the Madrid Statement.
Lord Mackie of Benshie: My Lords, does the noble Earl care to speculate as to what inducement it would take to make the noble Lord, Lord Stoddart of Swindon, join the ERM?
The Earl of Caithness: My Lords, after some of the debates on the student loans Bill, it is nice to see that the Liberals are more European than they have been of late.
Lord Stoddart of Swindon: My Lords, may I answer that question?
Noble Lords: No, no!
Lord Stoddart of Swindon: My Lords, I ask the noble Earl to say that no inducements are available which would persuade the noble Lord, Lord Stoddart of Swindon, to join the ERM.

Business
3.6 p.m.
Lord Denham: My Lords, at a convenient moment after 3.30 p.m. this afternoon, my noble friend Lord Strathclyde will, with the leave of the House, repeat a Statement that is to be made in another place on training credits.
It may be for the convenience of the House if I announce that the Committee stage of the Law Reform (Miscellaneous Provisions) (Scotland) Bill will be adjourned at about 7.30 p.m. for about one hour and that during this adjournment the Transport (Amendment) (Northern Ireland) Order 1990 and the Industrial Training (Northern Ireland) Order 1990 will be taken.

Strathclyde Regional Council Order Confirmation Bill
Read a third time, and passed.

Law Reform (Miscellaneous Provisions) (Scotland) Bill [H.L.]
3.7 p.m.
The Lord Advocate (Lord Fraser of Carmyllie): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee. —(Lord Fraser of Carmyllie.)
On Question, Motion agreed to.
House in Committee accordingly.
[The BARONESS SEROTA in the Chair.]
Clause 6 [Powers of Court of Session to deal with management of charities.]:
[Amendment No. 83 not moved.]
The Earl of Selkirk The Earl of Selkirk: moved Amendment No. 84:
Page 7, line 31, leave out ("(f)") and insert ("(j)").
The noble Earl said: This is not an important amendment in itself but it provides certain variations for the Lord Advocate in pursuing cases where there appears to be misconduct or mismanagement. The alternatives are shown in paragraphs (a) to (j). I am suggesting to the noble and learned Lord that in both cases which are there cited he may as well take all the alternatives from paragraphs (a) to (j). He has divided them in two, taking paragraphs (a) to (f) and then paragraphs (f) to (j). I should have thought that it would be better to have no division. The alternative lies in the words of the Bill which say in effect: "Where the court thinks that there has been misconduct …".
In the second case the court is satisfied that there is misconduct. Those distinctions are very small. I should have thought that, to give the noble and learned Lord the Lord Advocate as wide a choice as possible, it would be much better to keep the full list of alternatives in both cases; that is, from paragraphs (s) to (f) Paragraph (j) comes in a little later. I suggest that he might take those out and put all the alternative courses in both cases. I beg to move.
Lord Fraser of Carmyllie: The Government believe that it is important to distinguish between the powers which the noble Earl referred to at subsection 5 (a) to (f) and those at paragraphs (f) to (j). The powers at paragraphs (a) to (f) are essentially of a temporary and protective nature. Before applying them the court need only be satisfied under the clause that there is or has been misconduct or mismanagement or—and I stress this—that it is necessary to act for the purposes of securing proper application of the property.
In applying those permanent and remedial powers at paragraphs (f) to (j), the court must apply the more stringent test which is that there is or appears to have been misconduct or mismanagement and that it is necessary to act to secure the proper application of the property.
As the noble Earl spelt out, the latter powers are very stringent in character. For my interest I am content that I should be restricted to the first set of
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powers, where I am only involved to ensure that nothing damages the trust until the court is in a position to look at the matter on a more permanent basis.
The Earl of Selkirk: If the noble and learned Lord the Lord Advocate is satisfied, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 85 and 86 not moved.]
The Principal Deputy Chairman of Committees (Baroness Serota): In calling Amendment No. 87 I should point out to the Committee that if the amendment is agreed to I cannot call Amendments Nos. 88 or 89.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie: moved Amendment No. 87:
Page 7, line 41, leave out subsection (3).
The noble and learned Lord said: This amendment reflects our desire to make the provisions of Clause 6 more easily understandable. The primary effect is to combine the provision at existing subsections (3) and (6) to form a new subsection (5), which will deal comprehensively with the power of the Court of Session to transfer the assets of a body to another charity.
In exceptional circumstances the court may decide that the public interest would be better served by winding up a body altogether and transferring its assets to another charity. That would be a drastic and unusual step to take and the court must be satisfied that in the case of a recognised body or a registered or non-registered charity the very rigorous criteria set out in what was formerly subsection (3) are all met.
Under the terms of this amendment these provisions have been associated with subsection (6), which now becomes amended subsection (5), and enables me to bring before the court a scheme for the transfer of the body's assets to another recognised body. Under the provisions of amended subsection (5) the court may also approve a scheme for the transfer of assets of a non-registered body representing itself as a charity as mentioned under amended subsection (3). The procedures to be followed in those circumstances will be prescribed by my right honourable friend the Secretary of State for Scotland. I beg to move.
Lord Morton of Shuna: This amendment should be dealt with at the same time as Amendments Nos. 92, 93, 100 and 102. On the basis that that is correct, I draw attention to Amendment No. 100.
It is not necessary that there should be an "or" between paragraphs (a) and (b) or is it intended that there should be an "and" between paragraphs (a) and (b) of the amendment? Alternatively, is it necessary to have paragraph (a) at all, because the meaning of paragraph (a) is included in paragraph (b)? While there is a laudable and obvious intention to make this provision clearer—it would not be difficult to make this part of the Bill more clear—the noble and learned Lord the Lord Advocate has not achieved it in Amendment No. 100.
Lord Fraser of Carmyllie: I will check that. I thought it was clear enough, but I will look at it again.
On Question, amendment agreed to.
[Amendments Nos. 88 to 91 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie: moved Amendment No. 92:
Page 8, line 13, leave out ("subscriptions (5) or (6)") and insert ("subsection (5)").
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie: moved Amendment No. 93:
Page 8, line 14, after ("exercised") insert ("under this subsection").
On Question, amendment agreed to.
[Amendments Nos. 94 to 99 not moved.]
3.15 p.m.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie: moved Amendment No. 100:
Page 8, line 40, leave out ("The court") and insert:
("Where the court is satisfied, in the case of such a body as is mentioned in subsection (1) above, that —
(a) there has been in its administration any misconduct or mismanagement;
(b) it is necessary or desirable to act for the purpose of protecting its property or securing a proper application of such property for its purposes;
(c) it is not practicable nor in the best interests of the body to retain its existing administrative structure and, if appropriate, trustee body; and
(d) in its opinion, the body's purpose would be achieved better by transferring its assets to another such body, or where the court is satisfied as mentioned in subsection (4) above in the case of a non-recognised body, it").
On Question, amendment agreed to.
The Principal Deputy Chairman of Committees: I should point out to the Committee that if Amendment No. 101 is agreed to I cannot call Amendment No. 102.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 101:
Page 8, line 40, leave out from "scheme") to end of line 45 and insert ("for the transfer of any assets of that body to such body as the court may approve being a recognised body, an exempt charity or a registered or non-registered charity which is managed or controlled wholly or mainly in or from Scotland.").
The noble and learned Lord said: The purpose of this amendment is to give a wider discretion to the court rather than confine it to the Lord Advocate to specify which scheme the body is to be transferred to. It would seem more appropriate that the court should have a wide discretion and that it should decide whether this should be done. I beg to move.
Lord Fraser of Carmyllie: Under subsection (6), to which this amendment relates, the earlier government amendment becomes subsection (5). The amendment tabled by the noble and learned Lord seeks to exclude the role of the Lord Advocate to bring a scheme before the Court of Session for the transfer of assets of a body which has been guilty of misconduct to another body.
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A recurring theme in this Bill is the requirement for the Lord Advocate to act in the public interest. That is essentially the development of an existing role contained in the Act of 1921. The lack of anybody who may act in the public interest in the field of charitable supervision has been one of the most persistent complaints which persuaded the Government that this legislation was required.
It is unlikely that the court will often be asked to transfer assets to another body, but the ability for me to bring such a case before the court so that that may happen should be retained. That would seem to be the appropriate way forward, and with that explanation I hope the noble and learned Lord will withdraw his amendment.
Lord Morton of Shuna: Unfortunately I disagree with the noble and learned Lord the Lord Advocate. I cannot see anything in my amendment which prevents him from putting forward a scheme. I am trying to give the court the final discretion as to what to do with the scheme and to allow other people to put forward ideas. That is the only purpose of the amendment. There is certainly no intention to stop the Lord Advocate putting forward a scheme. However, I do not intend to press the matter and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie: moved Amendment No. 102:
Page 8, line 42, leave out ("that") and insert ("the").
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 103:
Page 8, line 48, leave out ("money or securities") and insert ("moveable property").
The noble and learned Lord said: These amendments seek to substitute the words "moveable property" in place of "money or securities" to ensure that the court order covers a wider range of dealings as well as monetary transactions. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie: moved Amendment No. 104:
Page 9, line 2, leave out ("the money or securities") and insert ("that property").
On Question, amendment agreed to.
Lord Morton of Shuna Lord Morton of Shuna: moved Amendment No. 105:
Page 9, line 5, leave out subsection (8).
The noble and learned Lord said: This amendment is grouped with Amendment No. 106, which proposes leaving out subsection (9). They are probing amendments. As I understand the clause, these subsections refer back to subsection (7), which deals with a charity,
"managed or controlled wholly or mainly outside Scotland".
In fact, it becomes a question of an English or Welsh charity because we are dealing with information from the Charity Commissioners and it is therefore a Charity Commissioners' charity, so to speak.
One can see why the court in Scotland should make an interim order, but why is it necessary that the court in Scotland should suddenly transfer money belonging to an English managed charity to some other body? Would it not be a matter more appropriately dealt with by an English or Welsh court? The same applies to subsection (9). Perhaps the noble and learned Lord can explain why the Scotish courts are to interfere with English charities. I beg to move.
Lord Fraser of Carmyllie: Subsections (7) to (9) provide powers to deal with charities which are based in England but which transfer their money or securities to a bank or a financial agent in Scotland. Most will have good and legitimate reasons for doing so. However, in some cases, transfer of money to Scotland may be in order to escape the control of the Charity Commissioners in England and Wales. The controls in the Bill at subsections (8) to (9) are severe controls designed to signal to any dubious charity which thinks that it can escape the control of the Charity Commissioners by transferring money to Scotland that it is much mistaken.
If we accept the amendment then we must rely in respect of such charities on the controls at subsection (7), which enables the court to make an order on the bank or financial agent freezing the transaction. Valuable as that is, however, it is intended to be a temporary power. Subsection (8) provides for confirmation of such an order but only where the court is satisfied that there has been mismanagement and that it is necessary to protect the property of the charity.
As the noble and learned Lord also pointed out, subsection (9) goes yet further. It enables as a final resort—I stress, final resort—where the court is satisfied that the money would not be used for the purposes of charity, to transfer such money to another recognised body or registered or non-registered charity. I take the noble and learned Lord's point that it is not difficult to envisage circumstances where the English courts intervene. This is seen very much as a backstop provision.
Lord Morton of Shuna: I said that these were probing amendments but I am still wholly unclear as to where, if one has in subsection (7) a charity which is managed or controlled wholly or mainly outside Scotland, we shall get the Scottish courts transferring its funds to some other charity that it or the Lord Advocate thinks of without creating absolute havoc with the judges in England. However, if the noble and learned Lord the Lord Advocate is happy, so be it, and I beg leave to withdraw the amendment.
Baroness Phillips: Before the noble Lord withdraws his amendment may I ask, as a mere Englishwoman who has handled charities, whether there is not some danger of being misunderstood? Scottish banks write to English people, surprisingly, and invite them to invest in various offers so that the old rather distinct order between North and South of the Border has happily changed. It appears that there is some slight danger that the English
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charities will become a little concerned unless the position is spelt out extremely clearly.
Lord Fraser of Carmyllie: As I attempted to point out, this measure is intended to catch not the perfectly legitimate and worthwhile charities which, for very good reasons that I might encourage them in, make some or all of their investments with a Scottish institution.
I believe the powers are necessary. They were not simply dreamt up in Edinburgh for the further expansion of the jurisdiction of the Scottish courts. I understand that the Charity Commissioners themselves asked that we take on board these additional powers.
Amendment, by leave, withdrawn.
[Amendment No. 106 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie: moved Amendment No. 107:
Page 9, line 17, leave out ("money or securities") and insert ("moveable property").
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment Nos. 108 to 110:
Page 9, line 19, leave out ("money or securities") and insert ("that property").
Page 9, line 23. leave out ("money or securities are") and insert ("moveable property is").
Page 9, line 24, leave out ("the money or securities") and insert ("that property").
On Question, amendments agreed to.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 111:
Page 9, line 42, leave out ("notwithstanding that he is not a named party to the proceedings.") and insert ("provided that he has had intimation of the nature of the proceedings, his potential liability for expenses, and his right to be heard.").
The noble and learned Lord said: The noble Lord, Lord Cameron of Lochbroom, and the noble Lord, Lord Macaulay of Bragar, join me in this amendment. The Bill provides, in subsection (11) of Clause 6, that the court,
"may award expenses against a person concerned in the control or management of the body, or against any such persons jointly and severally, notwithstanding that he is not a named party to the proceedings".
We propose adding that a person has the right to be heard in the proceedings as well as on his potential liability for expenses. For some reason this amendment is not grouped with Amendment No. 112, tabled by the noble and learned Lord the Lord Advocate. However, I suggest that it is not sufficient just to be heard on the question of expenses, because that leaves it impossible for the person to say that the whole thing was misconceived. Surely he must have the right to say that. I beg to move.
Lord Macaulay of Bragar: I support this amendment. To put the matter briefly, it seems to me that we are dealing with a question of natural justice. No person should be in the position of being landed with what might be considerable expenses without being informed, first, that there is a hearing

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in relation to the proceedings and, secondly, that he may be found liable. It is only natural justice that any person who might have such a liability pronounced against him should have information about the hearing and a right to be heard, as contained in Amendment No. 112.
Lord Grimond: I too support the amendment. As I mentioned on a previous amendment, I have suffered from being named in proceedings which came as a surprise to me as I regarded myself simply as an honorary officer of the charity concerned. I now understand that an honorary officer may be found due for expenses even though he is not named in the proceedings. I should have thought that was contrary to natural justice and therefore I hope that the noble and learned Lord will consider the amendment seriously.
Lord Fraser of Carmyllie: As regards a hearing on expenses, the noble and learned Lord will appreciate that I will be moving Amendment No. 112, which he indicated might have been grouped with Amendment No.111. I accept the validity of the point underlying his amendment to that extent.
I should have thought that my amendment was sufficient. What is objectionable—the noble Lord, Lord Macaulay, pointed this out—is that as things stand at present in terms of subsection (11) there might be an award of expenses against a person who was in control of management of the body but had no knowledge of the hearing and what happened at that hearing.
The view of the Government is that where there has been a hearing and the matter has been resolved before a court, that decision should stand. What is accepted as undesirable is that if there were those to be defined as in control of management but who were rot parties to the proceedings before, they should not be subjected to expenses liability without a hearing. I suggest to the Committee that, given this opportunity, the provision that is contained in Amendment No. 112 is sufficient. I shall be moving that amendment. In those circumstances I invite the noble and learned Lord to withdraw Amendment No. 111.
3.30 p.m.
Lord McCluskey: Does the noble and learned Lord the Lord Advocate envisage that if his amendment becomes part of the Bill the court will regulate the matter by making an appropriate act of severance so that the conditions for notice and the like are all set forth?
Lord Fraser of Carmyllie: I certainly envisage that. As the matter looks at the moment, in terms of Clause 6(11), it appears a rather startling circumstance that the court can award expenses against someone without hearing that person. If there is any further intimation required and the court considers that appropriate, I envisage that that will be provided.
Lord Morton of Shuna: I: very much hope that the noble and learned Lord will take this matter away and think about it further. He appeared to be saying that before the mismanagers, if I may call them that, were told anything about the matter, the court would decide without their being present that there had been mismanagement or lack of control. Having so decided, and without giving the mismanagers the opportunity of being heard, the court would then allow them to be heard on the question of expenses. I am sure that the noble and learned Lord will agree that that seems to be a denial of natural justice. It is necessary for the persons concerned to have a right to be heard on the main complaint of mismanagement before they are found in any way liable for expenses. Therefore, I hope that the noble and learned Lord will take this point away and think about it again rather than simply rely on his own amendment which does not go far enough.
Lord Macaulay of Bragar: There is one other point to be raised. The tabloid press is quick to jump on the issue of the mismanagement of charities in what it sees as the exercise of the public interest as opposed to curiosity. It could do considerable damage to a party to have his alleged activities in the running of a charity canvassed in the press without any contradictor being in court at the time. For that reason I support the observations of the noble and learned Lord, Lord Morton of Shuna, on this point. There should be no hearing on the matter until intimation has been made against two persons who are likely ultimately to be found liable for expenses for mismanagement or miscontrol.
The Earl of Perth: I support noble Lords who have said that it appears odd suddenly to find that all one can appeal about is expenses and nothing else because one does not know about other factors. I very much hope that the noble and learned Lord will, as asked, think again.
Lord Fraser of Carmyllie: Perhaps I may explain the mischief to be met in terms of Clause 6(1 l)(b). There could be an award of expenses against someone concerned in the control of the management of a body notwithstanding the fact that he is not a named party in the proceedings. It was envisaged that there might be four or five people involved in the management and control of a charity. Let us say that four of them were named parties in the proceedings. As matters stand the fifth person might find that there was an award of expenses against him as well. It is that set of circumstances, which may be remote, that we have to anticipate and deal with.
I shall certainly look at the matter again. I thought that what concerned Members of the Committee would be met by my amendment. I still propose to move Amendment No. 112 and I invite the noble and learned Lord to withdraw his amendment. I make that request on the basis that I will look at the matter again.
Lord Morton of Shuna: I am obliged. This part of the Bill is in a complete mess as regards who are parties to any of these proceedings except the Lord

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Advocate. As far as we know from anything in the Bill, he goes to court and nobody else has a right to do anything except that certain trustees may sometimes be able to go to court and object about expenses. I hope that the noble and learned Lord will look at the matter again. On his assurance that he will, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Strathmore and Kinghorne: I beg to move that the House do now resume.
Moved accordingly and, on Question, Motion agreed to.
House resumed.

Training Credits
3.35 p.m.
The Parliamentary Under-Secretary of State, Department of Employment (Lord Strathclyde): My Lords, this may be a convenient moment for me to repeat the Statement made by my right honourable friend the Secretary of State for Employment in another place. The Statement is as follows:
"With permission, Mr Speaker, I should like to make a statement about training credits for young people. The initiative that I am announcing today marks an important new departure in our policies for training young people. Its aim is to excite young people about the benefits of continuing in training and further education after they have left school and to raise the amount and quality of training provided by employers. The initiative has the potential to revolutionise attitudes to training in this country.
"If we are to compete effectively in the world economy of the 1990s, we need a skilled workforce which is second to none. The basis for that must be effective and high quality education and training for young people. In schools the Education Reform Act, GCSE and the technical and vocational education initiative are raising levels of attainment and preparing young people for the world of work. The new arrangements for youth training will build on the achievements of YTS and lead both to higher levels of training and to training which is more relevant to the needs of employers. We are currently establishing training and enterprise councils throughout England and Wales and local enterprise companies in Scotland. One of their key tasks will be to mobilise local employers to offer more and better training to young people in the skills needed by industry.
"But we must also motivate young people themselves to understand the importance to them of quality training and to come to expect training as a normal part of employment. There has been widespread interest in training credits as a means of achieving this. The CBI in particular has advocated credits in its report Towards a Skills Revolution and has proposed pilot schemes at local levels to test them out.
"Training credits represent an entitlement to train to approved standards. They would be issued
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to young people who would be able to present their credit either to an employer who makes training available or to a specialist provider of training if the young person is unable to find employment. Young people should be given quality careers advice and guidance to help them to put their credit to best use.
"A monetary value would be shown on the face of the credit and it would be open to employers and the body issuing the credit to supplement this as necessary to secure higher cost training or other priorities. I and my right honourable friend the Secretary of State for Education and Science, together with the Secretaries of State for Scotland and Wales and other Ministers concerned, have looked closely at the range of proposals for training credits. We agree that credits are potentially an exciting means of motivating young people to train.
"Credits are, however, as yet untested. We have therefore decided to invite training and enterprise councils and local enterprise companies to run pilot credit schemes to come into operation from April 1991. To this end, I am today issuing a prospectus inviting them, in co-operation with local education authorities, to submit bids for my approval.
"The aim is to select 10 such schemes to operate from April next year in areas covering up to 10 per cent, of the national total of 16 and 17 year-olds leaving full-time education—that is, some 45,000 young people per year. Every pilot will provide young people with an entitlement to train. Under some pilots, the entitlement will be for all young people leaving full-time education. Others may take a more selective approach, focusing, for example, on improving training for particular occupations or skill levels in small firms or through inner city compacts or other business-education partnerships.
"In all cases, the training and enterprise councils will need to work closely with local education authorities, further education colleges and the careers service. The Secretary of State for Education and Science, together with the Secretaries of State for Scotland and Wales, will ensure that the authorities are properly involved.
"The training and enterprise councils will be expected to ensure that credits are only used for training which is relevant to the needs of employers and which meets approved standards. Their schemes will need to lead to larger numbers of young people undertaking training and to the attainment of higher skill levels. There will be rigorous evaluation of the effectiveness of the schemes.
"The councils will also have to make sure that all young people who are unable to find jobs will, as now, be guaranteed a suitable training place and that there is appropriate provision for young people who are disabled or who have other special training needs.
"Overall funding for these pilot schemes will come in large part from planned provision for youth training. There will also be a contribution

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from the relevant element of local education authority provision for 16 to 18 year-olds undertaking part-time training and education. From their existing expenditure plans, the Government are making available a further £12 million in 1991–92 rising to £25 million in the following year. This will bring the total estimated resources available to the training and enterprise councils running pilot credit schemes to £115 million by 1992–93.
"Mr. Speaker, this is the first important step in an exciting new direction. Its purpose is to make a major impact on the motivation of young people to train after they have left school and so to increase the skills and productivity of our young workforce. I am sure that these proposals will be widely welcomed. I commend them to the House."
My Lords, that concludes the Statement.
3.40 p.m.
Baroness Turner of Camden: My Lords, I thank the Minister for repeating the Statement and I congratulate him on the very clear way in which he has presented this new scheme to the House. I understand that the scheme has the support of the TUC and the CBI, both of which, I gather, have wished it a fair wind. In such circumstances we on this side of the House certainly do not want to adopt a negative attitude to it. Indeed as the House will know, we have constantly raised the issue of training; we have constantly pressed for further resources to be devoted to it; and we have constantly raised the whole issue of training as a major question for the economy of this country and for our future well-being.
I wish to raise one or two points although, as I said earlier, we certainly do not oppose the scheme and indeed wish it well. First, an important element will be monitoring. I am glad to note that it is intended to run a pilot scheme in the first instance. It is an entirely new endeavour and everyone will want to know how effective it will be. But clearly there must be some assurances that the employers responsible will be in a position to offer quality training, and that there will be proper monitoring of the schemes in operation on employers' premises.
Secondly, there is the whole issue of resourcing. We said earlier that we are concerned about the lack of resources being devoted to training. In that connection I should like to bring to the attention of the Minister a rather troubling report in today's Financial Times. It is headed:
"YTS agents attack 22 per cent, cut in training grants".
There is a reference to cuts being made in training grants. The comment is made:
"It is part of the Government's attempt to pass more of the cost of training to employers as the number of young people falls and the demand for them in the labour market increases".
That seems to be the general thrust of government policy, although I am glad to note that they intend to put more money into this credit scheme.
Resourcing and monitoring are the two factors that most matter in a scheme of this kind. There is also the issue of what happens at schools. I am glad
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to note from the Statement that it is intended to involve local education authorities. But motivation of young people in the direction of skill training needs to be undertaken in schools. One hopes that that will be taken on board as well.
With those comments, I welcome the overall thrust of the scheme. Like the TUC and the CBI, I wish it a fair wind.
Baroness Seear: My Lords, on these Benches we too give a general welcome to the Statement, realising that it is a much needed step in the direction of improving training in this country. We welcome too the suggestion for pilot schemes and for different kinds of pilot schemes. If we can have a number of different pilot schemes dealing with different areas and different types of trainees we shall learn a great deal and be able to improve the national scheme accordingly. It will be interesting to hear the results of those pilot schemes as they are made available.
I notice that early in the Statement reference is made quite correctly to the importance of improving both education and training. Unless the level of education is improved it will be very difficult indeed to provide the training that is necessary. I remind the House that one of the great difficulties faced by YTS was that a great many of the youngsters—to say "a great many" is an exaggeration—but far too many of the youngsters coming forward for YTS training were so inadequately prepared in schools that it was not possible to give them the kind of training that they ought to have been given. Deficiencies in their original education had to be redressed before training was possible. This means that schools will have to have adequate resources and the teachers make use of them. I do not propose to enlarge on that point but it has to be underlined that one cannot have good training unless it is preceded by good education.
I should like to raise one or two questions with the Minister. As I understand it, the youngster will be given a credit. He will take it to a college. That is simple. One can see how that will work. It will be used to pay the cost of the course. He will take it to an employer. Will the employer take the credit and then pass it on to the college if he releases the youngster for training? Is that the idea? Let us suppose that the employer, as some employers do very successfully, runs a high quality training establishment himself. Will the employer take the credit and then use it for financing the training workshop in his own enterprise? I should like some explanation of how this will work in relation to the employer. The college part is straightforward but it is a little more complicated to see how the scheme will work when training is done on an employer's establishment.
Quality is the most important and difficult of the issues raised. The scheme will not be of any use unless the training is of a much higher quality than in many cases it has been in the past. There is a tendency at present to accept as training the kind of performance that no person professionally involved in training would accept as proper training. I see that the running of the schemes is being left to the TECs. This is all part of the Government's policy

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and in many ways there is much to be said for it. However, I should point out—I know that the Minister knows this already—that the TECs have been told that they should have on them only people who are senior executives. People who have professional training experience, which now involves a considerable amount of knowledge and experience, are explicitly excluded from membership of TECs. I can give examples of people of high standing in their own organisations who are well recognised nationally as being highly knowledgeable about training who have been turned down from membership of TECs because they do not fulfil the definition of senior executive. If we want quality I stress that there should be people on the TECs who are experienced in developing high quality training. It is not sufficient to leave it to people who have risen to the top through finance or marketing and have never had to be involved directly in training. They know what they want as the final result of training but they have no experience of developing quality training. I beg the Minister to think again about the personnel on the TECs.
I have one further point. We are told that the schemes will have to be related to employers' needs. That is fine but how will it be interpreted locally? A youngster of considerable ability might want to train in some aspect of engineering which is nationally very much in demand but in which there is no specific local interest. It would be highly undesirable if the use of these vouchers were to be so narrowly constrained locally that people with a talent and ability for taking training in much needed areas, but not areas needed locally, were denied the opportunity to do so. Can the Minister clarify the position?
I see that the credits are to be given to 16 to 17 year-olds. We want to avoid discouraging people in the 16 to 17 year-old age group from staying on at school. If they can get these vouchers at 16, is there not a danger that they will take the vouchers straightaway rather than staying on for a longer period at school which in many ways would be advantageous to them? They could get vouchers later on and then go from a better level of education to a better level of training.
Lord Strathclyde: My Lords, it is always a great pleasure to come to this House to make a Statement which is so generally welcomed by the noble Baronesses opposite. I was pleased to hear the noble Baroness, Lady Turner, say that she supported the idea, that it is a good scheme and one which should be encouraged. I am glad that she mentioned the Labour Party's record because for a long time it did not show any great concern about training. It is only in recent years that it has started to say that training should play a far greater part in our national economy than it did previously. I hear one or two noble Lords opposite muttering dissent, but they will no doubt be aware that the real cost of training undertaken by the Government has increased by three times in real terms over the course of the past 10 years.
The noble Baroness, Lady Turner, talked about evaluation, as did the noble Baroness, Lady Seear.
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It is of course of great importance that the pilot schemes are evaluated. They will be rigorously evaluated at national and local level. My right honourable friend the Secretary of State will be looking for success in increasing the take-up of training opportunities by young people and progress towards securing jobs with training for all the young people on the labour market. It will be crucial for those pilot schemes to continue to provide training places under the guarantee for all those needing one and to demonstrate opportunities and achievement by those with disadvantages and special training needs.
My right honourable friend will also want to see success in raising the general level of skills among young people and meeting demanding targets for the numbers reaching craft and technician skills. Once the pilot schemes have been evaluated we shall, at that stage, be in a far better position to see exactly how they should be expanded nation-wide. But obviously the question of evaluation both with the pilots and thereafter on a national scheme is absolutely paramount.
The noble Baroness, Lady Turner, also mentioned an article which appeared in today's Financial Times on the resources made available to youth training and to training generally. The Government are determined that the value and quality of training given to young people should rise. However, it is perfectly true—and we have always made this absolutely clear—that we are expecting the contribution from employers to increase. I am not sure that the noble Baroness should necessarily object to this, because her friends in another place are always saying that employers should contribute more. But their way of achieving this would be to set a tax on jobs.
When dealing with young people there are two major factors to be taken into account. First, there are the demographic changes which we have discussed many times in this House; and, secondly, there is the massive decrease in unemployment generally, especially as regards young people, which has obviously alleviated the problem. However, we are dealing here with training and I think that the moves we have announced today are very sensible.
The noble Baroness, Lady Seear, asked me a great variety of detailed questions which I shall try to answer as effectively as possible. Her main question was about the link between the TECs and the education authorities. The Secretary of State for Employment and the Secretary of State for Education and Science will be looking for co-operation between TECs and local education authorities as a key element in the pilot schemes. The involvement of LEAs is essential to identify the local circumstances which a pilot scheme should address and to secure coherent provision for the age group as a whole. Schools will have a key role in distributing credits and advising young people about their use. Colleges will be the major providers of training and will need actively to market themselves to young people and employers. I hope that that will reassure the noble Baroness, who pin-pointed the drawback of YTS. We are now creating a very real link between schools and future employment.

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The noble Baroness made a second point about education. She said that these schemes would encourage young people to leave school and go for the vouchers. Over the past few years with the introduction of the GCSE we have seen a tremendous growth in the number of young people staying on at school. We have no reason to believe that the situation will change. We are not seeking to encourage young people to leave school in order to take up employment. We seek to ensure that, if they decide to leave school, the training they will then receive will be as effective as possible.
The other point made by the noble Baroness concerned the membership of TECs' boards. There has been some concern about this matter. Because the TECs are so revolutionary and exciting they have been immensely popular and many people would like to be board members. When we set up the councils we introduced quite strict criteria that they should mainly be made up of senior board members in industry. Of course, there is room on the boards for chief executives of local authorities, chief officers of local education authorities and members of some voluntary bodies. But there is not sufficient room for everyone. Below the board level there is room for precisely the kinds of experts to whom the noble Baroness referred.
The training and enterprise councils are there to provide training. It is not in their interests directly to exclude those experts who have built up a wealth of experience over many years. I hope that as TECs come on stream the noble Baroness will be reassured that all the people who have such knowledge about training will have their brains picked by the existing TECs. If I have omitted anything from my response to the issues raised by both noble Baronesses, I shall certainly write to them. However, I think that basically I have covered the situation.
3.57 p.m.
Baroness Carnegy of Lour: My Lords, I do not wish to detain your Lordships for too long but I should like to say that I regard this initiative as a tremendously encouraging step forward. Over many years attempts have been made in this country to move to some sort of credit system. It has been most difficult for various parts of industry to accept the position. I think that the unions have taken time to accept the situation, as indeed has the CBI. However, I understand that the confederation has proposed pilot schemes and that it is very much committed to the idea. It was excellent to hear from the noble Baroness on the Labour Front Bench that she feels that the initiative will receive general backing. That is really good news because I am sure that it is the right and modern approach.
The most important aspect of the initiative is the shift in emphasis that it will produce. Instead of young people saying, "Shall I, or shall I not, go on this scheme or that scheme?" they will go, credit in hand, and say, "I want this training; please may I have it?" Then, having accomplished the training to which the credit entitles them, they will feel that they own that training and that it is part of them. Moreover, when they move from job to job, or they
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progress in the same job, they will take that training with them and build upon it. They will see it as something which belongs to them. It will give them a strong incentive and it will also motivate employers who will find that the scheme works because young people are so motivated. Therefore, the change in emphasis is absolutely excellent.
However, can my noble friend say what the effect will be on youth training? Will the YTS continue for people who are not in work? Will there still be youth training opportunities for those who are not at work and who are unemployed? It seems most important that young people should not have to wait for training until they get a job. Moreover, will any of the credits be spent within local authorities or will they only be used in conjunction with employers? I hope that my noble friend can give us a clear idea as to how the whole system will work. I also hope that I have not bowled him too fast a ball.
Lord Strathclyde: My Lords, again it is a pleasure to hear my noble friend welcome the scheme in such glowing terms. She makes a valid point about the psychology of the scheme that will encourage young people to realise the worth of their training and therefore make even greater efforts to use the training throughout their careers. It will also encourage employers to recognise the motivation of their young employees.
My noble friend asked a specific question about youth training. At this stage the idea is that the government guarantee that there is a job for every single young person, every single school leaver, will remain. When we evaluate the pilot scheme and how it will operate, it will be up to TECs to bring in proposals as to how to incorporate the YT guarantee into the credit scheme. However, in the long term that guarantee will remain.
Lord Dormand of Easington: My Lords, I wish to apologise to the House and to the Minister for arriving one minute late. I was attending another meeting and came out as soon as I saw the annunciator change.
It will not surprise the Minister that I give only a cautious welcome to the scheme. The first point that I must make is, why the change now? Why this particular change? I think I am correct that the Minister's words were "We are now moving in a new direction". To me that seems to mean that it will be a pretty fundamental change. Therefore I put it to the Minister that at least it is an admission in part that what has happened so far has not been too successful. As he knows, some of us have questioned it for many months. I am glad to hear about monitoring; it is absolutely crucial. I am sure that the Minister takes it seriously. Perhaps I may add that I hope that the House will learn the results of monitoring as the scheme progresses.
Further, one presumes from what has been said that one of the aims must be that many more youngsters will be included in training. That is laudable and the way it ought to be. Therefore I assume that we shall need more trainers. The Minister may recall that I have raised this on a number of occasions. The quality of trainers is

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absolutely fundamental. Those of us who regularly visit various training courses can see some of the splendid work being done by some trainers. But it must also be said that there are many who, with the best will in the world, do not provide the standards that business, industry and the economy require. I ask the Minister from where will the extra trainers come? Can we say that extra training will be provided for the trainers?
My next point concerns the role of the public sector. I am delighted that the LEAs are now involved. That is a sensible and logical part of the scheme. I am glad that the Government and the Minister have seen fit to involve them on this occasion. It seems to me that other parts of the public sector could be involved and I should like to hear more on that.
Finally, perhaps I may repeat for emphasis what was said by my noble friend on the Front Bench. Unless the scheme is to be fully resourced, frankly it will either fail or not be as good as the Minister expects.
Lord Strathclyde: My Lords, of course it comes as no surprise that the noble Lord, Lord Dormand of Easington, does not fully welcome the scheme. He used the word "cautious" and said that this is a matter of changing direction. That reinforces the view that I have held for quite a long time that the noble Lord has not listened to what I have said in the past and does not recognise the direction that the Government have been taking for some time now.
Many years ago we introduced the concept of youth training, then employment training. Last year we introduced training and enterprise councils and this year we are introducing training credits. The noble Lord's party has on every single occasion said that this is the wrong thing to do. It is the noble Lord's party that is changing direction, not this side of the House.
He made the point that there would be more young people in training. I am not sure that that will be the case, partly because of the demographic trends which I have already mentioned, but also because under the existing provisions for youth training there is already an enormous number of young people who take part in training.
The more serious and valid point that the noble Lord made concerned the quality of those who provide the training. That is precisely why we put the provisions of training under the auspices of the training and enterprise councils which will be in the best possible position to judge whether or not the training provided is the most relevant, both for the trainees themselves and of course for the role of industry. That is fundamental.
I also welcome his words about local education authorities. However, he is no doubt aware that they have been involved in TECs since they were launched. Of course they play a full part in Compacts which are an inner city partnership between local authorities, schools and local businesses.
I do not think that we have got it wrong. I am glad that in retrospect the noble Lord, Lord Dormand,
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may possibly feel that he can welcome the scheme less cautiously. No doubt we shall have plenty of opportunities to discuss the matter in the future.
Lord Cledwyn of Penrhos: My Lords, like my noble friend and other noble Lords, I also extend a welcome to the further effort by the Government to improve training in this country. I am sorry that the noble Lord thought fit to make a small party political point. He is too young to remember that it was the Labour Party that was responsible for the enormous growth in further education in the post-war period. No doubt as his education increases, he will grasp that as well.
Perhaps I may ask him two questions. First, can he say where the pilot schemes are to be sited and how many specifically will be in Wales? He indicated that his right honourable friends the Secretary of State and the Secretary of State for Scotland take a close interest. We shall be interested to know where the pilot schemes will be sited.
Secondly, I am particularly concerned with those school leavers who are unable to find work in the rural areas. The cities and towns are far better catered for. In the small towns and villages it will be difficult to find suitable employers or places for training. How will the credits work there? For example, will they cover board and lodging if students have to travel distances? Is it envisaged by the noble Lord and his right honourable friend that, for instances, students will be expected to travel distances from small towns and villages in North Wales and parts of Scotland? This needs clarification.
Lord Strathclyde: My Lords, it is always a pleasure to hear the noble Lord the Leader of the Opposition joining us in these debates. The political points that I made right at the start were aimed not really at the long distant past but at the last Labour Government. I referred to their present policies which the noble Lord may know are still confused.
The noble Lord asked where pilot schemes would take place. We are today issuing a prospectus to all the TECs throughout the country asking them to bid for the pilot schemes. We suggest—and I return to something which the noble Baroness said—that they should offer a variety of schemes. Some will be universal schemes for all 16 to 17 year-olds, some will be selective towards particular industries and particular skill levels, as well as particular problems in their areas. That is the whole point of pilot schemes. I hope that TECs in Wales and LECs in Scotland will be some of the successful bidders so that we may obtain as broad a view as possible of how the future national scheme will work.
The noble Lord's point about rural areas is also valid. Perhaps I may refer back to the question raised by the noble Baroness about training required by an individual in one area which was not provided in that area but which was available in another area. At that stage the TEC has a responsibility, as we have always made clear, to provide for the training needs of local people. It will then decide exactly how that training should be provided. If it is in its interests to send people to an adjoining area and

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perhaps even to pay for the residential or travelling costs, it will be for it to decide with its private sector partners exactly how that will operate.
Lord Mackie of Benshie: My Lords, is there not a danger in the pilot schemes that the local enterprise board or whoever operates the scheme will choose its own industry to run a pilot scheme in the area whereas the great need might well be for a different kind of training in another area?
Lord Strathclyde: My Lords, we have as many TECs or LECs as possible covering as many different areas as possible; so there is a direct link between local provision and local needs. As they will cover the whole of the country, the noble Lord's problem will be covered.
Baroness Seear: My Lords, I do not want to take up time, but the noble Lord referred to my question to which he did not give an answer. My point is not what the TECs are thinking about in terms of local need, but where a youngster who has a credit and wants to train for something which is nationally desirable but not of immediate interest to the local TEC will go. That is my point. There is a national interest which is wider than the local TEC interest.
Lord Strathclyde: My Lords, as TECs will cover the whole of the country, there will be no national need which is not by definition a local need somewhere. So long as the individual can prove his or her need to be trained, it is up to the TECs to decide with other TECs exactly how that training need is to be provided.
Baroness Seear: My Lords, is the noble Lord saying that, if an inner-city girl wants to be a milkmaid, an inner-city TEC will find a TEC in the country which will take her? That is what I am asking.
Lord Strathclyde: My Lords, as I understand how TECs work, the onus is on them to decide the most valuable amount of training required. In the example used by the noble Baroness, there is no reason why, if the TECs were in agreement with that proposal, it should not be put into effect.
Lord Dormand of Easington: My Lords, will the Minister say when the country will be completely covered by TECs?
Lord Strathclyde: My Lords, the noble Lord no doubt knows that we set ourselves two years to cover the country. We hope to have covered 90 per cent, of the country by the end of the year.
Lord Dormand of Easington: My Lords, my question -elated to the whole country.
Lord Strathclyde: My Lords, we must wait to see how the bids come in for the existing TECs which need development funding. The noble Lord misses the point. We are already two years ahead of schedule in putting TECs into place. The process has gone extremely well and I hope that the noble Lord encourages the TEC in his area.
Lord Mackie of Benshie: My Lords, perhaps I may return to the question of the milkmaid as I believe it is important. The TEC in the town will surely not be interested in providing training for a milkmaid. Surely it would come out of its budget if it were to send the girl to a country area where there was training. I do not think that it would do it. There should be some overall control which would allow that kind of training outwith the budget of the particular TEC.
Lord Strathclyde: My Lords, the point of training provision in this country is not that it should offer a free-for-all for anyone who wants any kind of training in whatever industry he or she wishes. It is important that it is proved to be worthwhile and there is an attainment of skill levels at a national level. That is what is so important about training. TECs can support training needs in other areas and will be encouraged to support centres of excellence. That is the point.
Baroness Seear: My Lords, we are grateful to the other Members of the Government Front Bench for that answer.

Law Reform (Miscellaneous Provisions) (Scotland) Bill [H.L.]
4.15 p.m.
House again in Committee on Clause 6.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 112:
Page 9, line 43, at end insert ("but provided that he is allowed to be heard on the question of expenses").
The noble and learned Lord said: The words of the amendment are:
"but provided that he is allowed to be heard on the question of expenses".
I should point out that the first word of the amendment, "but", is redundant. For the reasons that I have already given to the noble and learned Lord, Lord Morton of Shuna, I hope it is clear that the amendment is intended to have broadly the same effects as the one that he moved, but without the difficulty which I thought was to be encountered in his. I beg to move.
On Question, amendment agreed to.
The Principal Deputy Chairman of Committees: I must tell the Committee that, if this amendment is agreed to, I cannot call Amendment No. 114.
The Earl of Selkirk The Earl of Selkirk: moved Amendment No. 113:
Page 9, line 48, leave out subsection (13).
The noble Earl said: This amendment deals with the word "court" which also appears in the margin of the Bill. It may be that it is unnecessary. Although the clause deals with mismanagement, it is obvious that some mismanagement may be very trivial. I put it to the noble and learned Lord the Lord Advocate that it is perhaps better to leave the word "court" without insisting on the use of "Court of Session". I have raised this point before. It is largely a matter

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of extent. If the noble and learned Lord wishes to leave it as "Court of Session", I shall not object, but I suggest that it might be easier to leave the word "court" by itself. I beg to move.
Lord Fraser of Carmyllie: As I indicated earlier, I am agreeable to the idea that there should be a choice of courts for most aspects of the Bill. However, the provisions that we have discussed with regard to Clause 6 contain, as our recent short debates indicated, complex controls and serious penalties. I believe that, in those circumstances, it is essential that those powers should be exercised exclusively by the Court of Session.
The Earl of Selkirk: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 114 not moved.]
Clause 6, as amended, agreed to.
Clause 7 [Disqualification of persons concerned in the management or control of recognised bodies]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 115:
Page 10, line 5, leave out ("a recognised") and insert ("any").
The noble and learned Lord said: Clause 7 contains pre-emptive measures aimed at the avoidance of mismanagement of charitable bodies by disqualifying certain categories of people from becoming involved in the management or control of recognised bodies. Clause 7 (l)(c) as presently drafted excludes only those people removed under Clause 6 who are involved in the management or control of a recognised body. Clause 6 also enables the court to remove persons from control of non-recognised, registered or non-registered bodies which are managed or controlled wholly or mainly in Scotland. It seems appropriate that those categories of people should also be disqualified under Clause 7 from involvement in the management or control of a recognised body.
The amendment therefore seeks to disqualify any person from the management or control of a recognised body who has been removed from the management or control of a charity by virtue of Clause 6. I beg to move.
The Earl of Balfour: Clause 7(1) refers to "a recognised body". Should that also be changed to "any body" in the same way as previously?
Lord Fraser of Carmyllie: I do not think so, but I shall check and make sure that there is no difficulty with the drafting.
On Question, amendment agreed to.
The Earl of Selkirk The Earl of Selkirk moved Amendment No. 116:
Page 10, line 10, after ("control") insert ("of a recognised body or from participation in its activities in the capacity of agent, secretary, treasurer or fund-raising consultant").
The noble Earl said: The purpose of the amendment is to make clear what is meant by management or control. To put the question beyond
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doubt the amendment proposes that a person concerned with management or control is an agent, secretary, treasurer or fund-raising consultant. As it is a question of incompetence or possibly of dishonesty, I suggest that that clearer definition is better than the rather vague words "management or control" which can be open to a variety of interpretations. The identification of the person or the office that he holds is desirable. I beg to move.
Lord Morton of Shuna: A great deal of clarity would be introduced into the obscurity of this part of the Bill if the words "management and control" were defined in some way. Nobody knows—except perhaps the noble and learned Lord the Lord Advocate or those who drafted the Bill and they are not telling us—who it is anticipated are people with management and control, what that covers and where it is covered.
Some definition is necessary. I am not sure that this amendment has the effect of defining who is in management and control. It seemed to me on reading it, but I may be wrong, that it adds another group of people to those in management and control.
Lord Macaulay of Bragar: The amendment is grouped with Amendment No. 117, which is an expanded version of the amendment of the noble Earl, Lord Selkirk. It may be convenient for the Committee to discuss both amendments at the same time.
As was discussed on the first day of Committee, the purpose of the Bill in relation to charities is to protect the public and people who may invest in charities from crooks. Clause 7 deals with people who have been convicted of dishonesty, become undischarged bankrupts who have been removed under the Bill, or are subject to disqualification under the Company Directors Disqualification Act. I agree with the observations of the noble and learned Lord, Lord Morton of Shuna, that one of the features bedevilling the Bill is that no one has apparently sat down to try to define what is meant by management and control. If they have sat down to consider it they have not stood up with an answer. I do not pretend for one moment that it is an easy term to define. However, broadly speaking what is meant is the persons responsible for persuading members of the public to invest in charities in the belief that they are doing some good to the world as a whole.
The amendments seek to put the Government on notice that, with the lack of a definition of management and control, there is a need for a wider net within the context of the Bill to catch people who have been convicted of dishonesty, and so on. As the Bill stands at the moment it is not clear whether the agent, secretary, treasurer or fund-raising consultant would be a person in management or control. He would be a person concerned with the management of a charity but he would not be either managing or controlling it because that would be done by the trustees.
As the Bill stands at the moment someone convicted of fraud under Clause 7(1)(a) could become an agent, treasurer or secretary of a charity. We all know that it is not at the top of the

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management scale of charities that public damage is done. It is done at the very level which the amendments seek to emphasise—the agent, the secretary or treasurer. Those are the people who have their fingers in the cookie jar of the charitable funds. Very often the money will disappear before the people who are nominally in management or control of the charity find out about it. That is the reasoning behind Amendments Nos. 117 and 116, which have the same object.
It may be appropriate for the noble and learned Lord the Lord Advocate to give an indication to the Committee that he will at least consider expanding the categories of people who would be denied any opportunity to have anything to do with charitable funds in the future.
Lord Grimond: The Committee will be aware that I have some interest in achieving a further definition of control. I raised the matter under an earlier amendment and I expressed some dissatisfaction with the reply of the noble and learned Lord the Lord Advocate. I hope that now that two lawyers have also expressed some doubt as to what is meant by control and some hope that it will be further defined, at some stage we shall have a further definition of control.
As to Amendment No. 116, I share the desire of the noble Earl that the matter should be made more explicit. What particularly interests me, as a layman, is that among the people he suggests are in control or in management, trustees are not mentioned. I should have thought that trustees are pre-eminently in control of charities if the charity has trustees.
Lord Macaulay of Bragar: Perhaps I may take up the point raised by the noble Lord, Lord Grimond. The amendment is phrased as an alternative. The management and control which would cover the trustees is already there. The word "or" is there for a purpose. It is to catch the second layer of management.
Lord Fraser of Carmyllie: This short debate on who is or is not in management control and the additional group the noble Earl has put forward in his amendment—and I believe that the noble and learned Lord, Lord Morton of Shuna, is correct in saying that it prescribes a secondary group who might be caught by this provision—amply demonstrates why we have chosen the terminology "management or control". We intended it to be as wide as possible.
There must always be a risk, even in the circumstances the noble Lord, Lord Macaulay, has mentioned, that if one introduces a particular provision to cover particular capacities, instead of extending the control that one wishes to achieve one restricts it.
Reference is also made in both amendments to fund-raising consultants. So far as concerns that aspect of the amendments, my right honourable friend the Secretary of State for Scotland has powers under the Civic Government (Scotland) Act 1982 to make regulations for the control of fund raising.
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There is a risk that if the definition is too tightly controlled those who are unscrupulous and seek to take advantage of charities for their own improper purposes will find their way round it by not being a secretary or a treasurer.
In response to the noble Lord, Lord Grimond, in my view management and control would certainly include trustees. It would also include a number of other persons who would be in management or control. I am anxious to avoid spelling out a list of capacities and finding that those who are unscrupulous in their use of charities might find their way through the provisions by adopting some other capacity.
Lord Mackie of Benshie: Taking up the point of my noble friend Lord Grimond, could the Minister confirm that if you accept the position of president of some charitable body—which all of us are asked to do—you are definitely responsible if some of the agents below you make off with the dough? In other words, if you accept the position of president you have to see that you do your job as president.
Lord Macaulay of Bragar: Will the noble and learned Lord the Lord Advocate take the point on board by widening the definition? He has given his interpretation of the restrictive nature of the amendments. However, it could easily read "or from participation in any activities, including acting in the capacity of agent". That would be a wide-ranging net to catch anyone who was running a charity having been caught by Clause 7(1). It does not need to be restrictive.
The Earl of Selkirk: I do not want to interfere in this conversation, which is extremely interesting, but may I suggest that we leave it to the noble and learned Lord the Lord Advocate to see whether he can improve it? I would withdraw the amendment quite happily and leave it to the Lord Advocate to see whether he can improve it. I am sure that with the great resources behind him he will be able to produce a brilliant answer to the problem.
Lord Morton of Shuna: I agree with that. It certainly should be improved. But it should not be improved so that anybody who takes on a job with a charity is automatically liable to be disqualified for life from doing anything and may be sent to prison for six months for doing it. We have to encourage people to act as trustees of charities, not to pile on the penalties.
Lord Fraser of Carmyllie: Perhaps I may conclude this discussion by briefly saying that the test is that of management or control. If the noble Lord, Lord Mackie, takes on yet another honorary presidency in the fair borough of Kirriemuir, I assure him that, just because he assumes that honorary capacity, he is not immediately to be sent to gaol.
The Earl of Selkirk: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 117 not moved.]
4.30 p.m.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 118:
Page 10, line 21, leave out from ("liable") to end of line 23 and insert:
("(a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or to both; and
(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine or to both.").
On Question, amendment agreed to.
Clause 7, as amended, agreed to.
Clause 8 [Grounds for approval of cy pres schemes]:
The Earl of Selkirk The Earl of Selkirk: moved Amendment No. 119:
Page 11, line 4, after ("Court") insert ("of Session or the Sheriff Court").
The noble Earl said: This amendment relates to the question of what we call a court, and again I suggest that it should be open because, although this is the doctrine of cy pres, which is slightly delicate in all circumstances, there are a number of occasions when it is very trivial. On the whole if left to myself I would have suggested that the noble and learned Lord the Lord Advocate should have an open case. Which court does he go to? Some cases will be very trivial and, I should have thought, well within the capacity of the sheriff court. But I am not pressing this point. If the noble and learned Lord does not agree, we need not worry about it. I beg to move.
Lord Morton of Shuna: The noble and learned Lord the Lord Advocate has an amendment which takes out the whole of Clause 8 and replaces it with a new clause, for reasons best known to himself. Is it of any purpose to be discussing the clause which the noble and learned Lord is just about to kick into oblivion?
Lord Fraser of Carmyllie: There might be little purpose in doing it in ordinary circumstances, particularly when the new clause that I should like to introduce by way of the next amendment would meet the very point that the noble Earl asks of me—that there should be the opportunity for cy pres schemes to be dealt with not only in the Court of Session, as is required at the moment, but in appropriate cases in a sheriff court so that local matters can properly be considered.
The Earl of Selkirk: I should have noticed that point before. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 120 to 122 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie: moved Amendment No. 123:
Leave out Clause 8 and insert the following new clause:
("Reorganisation of public trusts by the court
8.—(1) Where in the case of any public trust, the court is satisfied—

(a) that the original purposes of the trust, whether in whole or in part—

(i) have been fulfilled as far as is possible to do so; or

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(ii) can no longer be given effect to, whether in accordance with the directions or spirit of the trust deed or other document constituting the trust or otherwise;

(b) that the original purposes of the trust provide a use for only part of the property available under the trust;

(c) that the original purposes of the trust were expressed by reference to—

(i) an area which has, since the trust was constituted, ceased to have effect for the purpose described expressly or by implication in the trust deed or other document constituting the trust; or

(ii) a class of persons or area which has ceased to be suitable or appropriate, having regard to the spirit of the trust deed or other document constituting the trust, or as regards which it has ceased to be practicable to administer the property available under the trust; or

(d) that the original purposes of the trust, whether in whole or in part, have, since the trust was constituted—

(i) been adequately provided for by other means; or (ii) ceased to be such as would enable the trust to become a recognised body; or

(iii) ceased in any other way to provide a suitable and effective method of using the property available under the trust, having regard to the spirit of the trust deed or other document constituting the trust,

the court, on the application of the trustees, may, subject to subsection (2) below, approve a scheme for the variation or reorganisation of the trust purposes.
(2) The court shall not approve a scheme as mentioned in subsection (1) above unless it is satisfied that the trust purposes proposed in the scheme will enable the resources of the trust to be applied to better effect consistently with the spirit of the trust deed or other document constituting the trust, having regard to changes in social and economic conditions since the time when the trust was constituted.
(3) Where any of paragraphs (a) to (d) of subsection (1) above applies to a public trust, an application may be made under this section for the approval of a scheme—

(a) for the transfer of the assets of the trust to another public trust, whether involving a change to the trust purposes of such trust or not; or

(b) for the amalgamation of the trust with one or more public trusts,

and the court, if it is satisfied that the conditions specified in subsection (2) above are met, may approve such a scheme.
(4) Subject to subsection (5) below, an application for approval of a scheme under this section shall be made to the Court of Session.
(5) From such day as the Lord Advocate may, by order, appoint, an application for approval of a scheme under this section may be made by a public trust having an annual income not exceeding such amount as the Secretary of State may, by order, prescribe—

(a) to the sheriff for the place with which the trust has its closest and most real connection;

(b) where there is no such place as is mentioned in paragraph (a) above, to the sheriff for the place where any of the trustees resides;

(c) where neither paragraph (a) nor (b) above applies, to the sheriff of Lothian and Borders at Edinburgh.

(6) Every application under this section shall be intimated to the Lord Advocate who shall be entitled to enter appearance as a party in any proceedings on such application, and he may lead such proof and enter such pleas as he thinks fit; and no expenses shall be claimable by or against the Lord Advocate in any proceedings in which he has entered appearance under this subsection.
(7) This section shall be without prejudice to the power of the Court of Session to approve a cy pres scheme in relation to any public trust").
The noble and learned Lord said: As I have already briefly indicated, the purpose of this amendment is to provide as an alternative to the existing cy pres procedures of the Court of Session, new statutory rules permitting the reorganisation of public trusts.
The amendment also confers concurrent jurisdiction upon the sheriff court and Court of Session in respect of trusts wishing to reorganise whose annual income does not exceed a threshold which will be prescribed by my right honourable friend the Secretary of State. At present, the Court of Session has that exclusive cy pres jurisdiction.
The existing basis upon which cy pres schemes are granted is somewhat restrictive, in that reorganisation of the trust is available only where it is no longer possible to carry out the purposes of the trust in the manner prescribed. One of the objects of amended Clause 8 is to broaden the scope for reorganisation by providing a statutory procedure which will enable the court to sanction a scheme where the objects of the trust have become outmoded or unsuited to modern conditions. Thus it will no longer be necessary to demonstrate that it is impossible to carry out the trust purposes in the manner prescribed.
Subsections (1) and (2) set out what tests must be applied by the court in deciding whether to approve an application for variation or amalgamation. Subsection (3) provides that application to the court may be made by a public trust for a scheme to reorganise or amalgamate where any of the conditions at subsection (1) apply, and enables the court to approve such a scheme.
All public trusts with an annual income above a threshold which my right honourable and learned friend will prescribe will continue to have to make application to the Court of Session. It is desirable that the experience and wisdom of the senior court should be brought to bear in considering schemes for reorganisation in respect of these larger trusts. In the case of smaller trusts with income below the prescribed level, subsection (5) provides for application to be made to a sheriff court. However, there is a provision enabling me to appoint an effective date after which application may be made to the sheriff court. That is intended to allow the Court of Session to have had some experience of the new tests to be set down and to indicate to a lower court how we should proceed.
It will be noted that now I have introduced new Clause 8 there are significant differences in approach between that new Clause 8 and what is contained in the existing Clause 9. It does not square with those new Clause 8 statutory rules. Perhaps I may give the indication that, having regard to the changes in Clause 8, I propose to return at Report to new Clause 9 to bring it into line with Clause 8. I beg to move.
Lord Morton of Shuna: I wonder whether in dealing with this amendment we could have some assurance that Clause 10 will also be looked at as well, because it really comes together with Clauses 8 and 9. Dealing with this amendment and the details of it, I hope that the noble and learned Lord, or his successor, may be slow to operate subsection (5), at least until the Court of Session has given clear guidelines by decisions it has made, so that the sheriff courts can have some knowledge of the standards they are to apply and the tests they are to apply.
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To go in more detail to the new clause, is it intended that paragraphs (a) and (b) of subsection (1) should have an "or" after them, or are they cumulative or what is the position? As it reads we have:
"(1) Where … the court is satisfied—
(a), (b), (c), or (d)".
Does that mean (a) or (b) or (c) or (d), or does it mean (a) and (b) and (c) or (d)? It is far from clear and perhaps it could be clarified. As this clause deals wholly with public trusts, it seems to me unnecessary to say in subsection (3),
"Where any of paragraphs (a) to (d) of subsection (1) above applies to a public trust",
because that is the subject of the whole clause. So it seems to be unnecessary.
This group of three clauses, Clauses 8, 9 and 10, displays one of the basic confusions that remain in this part of the Bill. We do not have a definition of "charity", we do not have a definition of "management or control" and we now suddenly have public trusts which do not need to be charities. We also have, as the noble and learned Lord will be fully aware, a long line of cases which have decided that a bequest or a trust constitutes giving the trustees power to give to charity and that giving the power to the trustees to choose that charity is valid. So you may have a situation where a man leaves his estate with a life rent to his widow and the capital to be distributed as the trustees choose for charitable objects.
If one examines Clauses 1 and 2, those trustees might be restricted in their choice to recognised bodies; in other words, Inland Revenue recognised charities. So there could be a public trust which is prevented from receiving or seeking bequests or money unless it were a recognised body, even if the public trust was lawful and had useful objects. In other words, on that interpretation the word "charity" as used in the Bill must mean a body having charitable objects and one recognised by the Inland Revenue.
However, there are cases such as the Glasgow Trades House case which show that one can have public trusts which have charitable objects but which do not get Inland Revenue recognition and what used to happen about them. That is one interpretation.
The other interpretation is that a non-recognised body with charitable objects can continue so long as it does not use the word "charity" and uses the words "charitable objects". That would drive a coach and horses through the whole scheme of the Bill, which is to provide a framework to cut out dishonest people. Any body that wanted to avoid those rules would not register with the Inland Revenue. Instead, it would publicise its charitable purposes, never use the word "charity" and could get away with anything because nothing in this scheme applies to it.
The Government must look again at this whole section. I gather that at Second Reading I may have offended those responsible for drafting because of what I said about it. I remain convinced that the drafting at least of this part—and I am talking only about charity—showed the skill and experience in the trust law in Scotland and the knowledge of the

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need to help charities in their work that would be expected of a frightened elephant stamping about in a swamp. That is not good enough for a Bill that the Government introduce in this House.
Lord Grimond: I too was puzzled to note under the new Clause 8(1) that the court must be satisfied as to paragraphs (a), (b), (c) and (d). To me as a non-lawyer it looks as though the court must be so satisfied because the word "or" is not inserted; the Bill simply lists those paragraphs as the conditions upon which it must be satisfied. I should be grateful if the noble and learned Lord the Lord Advocate would confirm that.
Until recently I was director of a body which most people would consider to be akin to a charity. It was not a charity because it paid tax. It would escape this Bill altogether. I make no objection to that. However, it is clear that the Bill applies only to bodies which are exempted from tax and not to bodies which exist for some purpose which, in most people's view, might well be called charitable.
I also have a query in relation to subsection (l)(d)(i). It seems to me to be extremely difficult for the court to know whether the objects of the charity have:
"been adequately provided for by other means".
To begin with there are people who attach importance to the means by which the objects are met. They might well feel that they had set up a charity to ensure that certain objects, which they might agree were at least partially met by other means, were provided charitably. I wonder whether the noble and learned Lord the Lord Advocate believes that the court can adjudicate whether something that someone has left money to provide can be provided by other means or, if it is provided by other means, that that is a necessary reason for striking out its provision by the means which the original donor set up.
4.45 p.m.
Lord Macaulay of Bragar: This particular clause—a clause which has been rewritten—has a rather ghostly air about it. It starts off (at the top of page (6) of the Marshalled List of amendments) with the words:
"the court, on the application of the trustees, may".
That presumes that the trustees exist. There must be many charities which were formed a long time ago from which the trustees have gone and perhaps its documents and assets are lying in the vaults of various banks in Scotland. I am told that a clear out is carried out from time to time. There is no provision in this clause for an application to be made to the court where there are no trustees.
One then comes to subsection (5). As one who had tabled amendments regarding the sheriff court, I seem to remember that the phrase used on this side of the Chamber:
"the sheriff court having jurisdiction over the place in which the trust has its principal place of business"
would give the sheriff court jurisdiction.
With regard to the basis of jurisdiction, and I am trying to be helpful and not critical, I find that the
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words in paragraph (5)(a) are rather difficult to construe. Perhaps as a matter of information the noble and learned Lord the Lord Advocate might tell us how he or his advisers understand the construction of the words:
"closest and most real connection".
Does that mean where its office is, where its money is disbursed or where its money is collected?
Turning to subsection (5)(b) it states:
"where there is no such place as is mentioned in paragraph (a) above, to the sheriff7 … where any of the trustees resides".
Then comes the clinching line in paragraph (c):
"where neither paragraph (a) nor (b) above applies".
That seems to suggest that there may be no place where the trust has its closest and most real connection and no trustees living within the jurisdiction of a sheriffdom. How is the application made in those circumstances where neither paragraphs (a) nor (b) applies? It is rather difficult. Perhaps I am being a little dense about the matter. However, it seems to me to create problems of interpretation.
When one turns to paragraph (c) where it says:
"where neither paragraph (a) nor (b) above applies"—
that is to say, there is no closest or most real connection, there is no trustee living in any place where a sheriff can exercise any jurisdiction—lo and behold, we are back to the east of Scotland again and back to Edinburgh. That was the whole point of the list of amendments that were tabled; namely, to give the sheriff court jurisdiction in the first place to avoid the expense of going to Edinburgh. What happens, for example, to a charity in Inverness where paragraphs (a) and (b) do not apply? They are then driven:
"to the sheriff of Lothian and Borders at Edinburgh".
Presumably that means the sheriff principal. Is there any reason why that could not be expanded to make it the sheriff principal of any sheriff court area in Scotland?
I ask those questions in a spirit of attempting to better the wording of the clause. I appreciate the spirit behind subsection (5) but it seems to me that it raises considerable difficulties for the future as regards interpretation and application.
Lord Fraser of Carmyllie: On a number of occasions I have said to the noble and learned Lord, Lord Morton, that I shall take matters away and consider them again. I hope that he will reciprocate the courtesy by looking again at the earlier clauses of the Bill and examining how they link up with these provisions where the term used is that of a public trust. I should have thought that that was a term which he understood well enough and that he knew what particular favour such trusts enjoy before the Court of Session at the present time. In this clause we seek to expand the basis on which a cy pres jurisdiction might be applied not only by the Court of Session as I indicated, but also by sheriff courts.
So far as concerns subsection (5), it is precisely because I agree with him that it would be desirable to have the Court of Session set up and how cy pres jurisdiction might be approached to give them this

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expanded set of statutory rules that I suggested in this subsection that that should be held off until such date as I, by order, appoint. As I understand matters, the Lord President of the Court of Session is already giving thought to how best the new expanded jurisdiction might be used. If noble Lords refer to new Clause 8(1), the word "or" appears between (c) and (d). By fairly well established rules of construction that implies that the four paragraphs are indeed alternatives.
I accept that following amendments to Clause 8, the wording of Clause 10 may be considered. All I intended to signal was that if there is to be amendment the greater amendment is likely to be to Clause 9.
On the closest and most real connection test, it derives from the Civil Jurisdiction and Judgments Convention and the 1982 Act. The noble Lord used the example of a trust in Inverness. I do not know exactly what he intended by that example. However, on the face of it it would seem that the trust had its closest and most real connection with Inverness and should accordingly appear before the sheriff there. If neither of the provisions under subsection (5)(a) or (b) were covered, it is proposed that a case not going before the Court of Session should go before the Sheriff of Lothian and Borders at Edinburgh. I should have considered that a worthwhile provision.
Perhaps I may conclude by stressing subsection (7):
"This section shall be without prejudice to the power of the Court of Session to approve a cy pres scheme in relation to any public trust".
Lord Hughes: When the noble and learned Lord the Lord Advocate objected to Amendments Nos. 116 and 117 he did so on the ground that what was already in the Bill—the more general form—was preferable to the detail that these amendments provide. However, this amendment—and I speak with no knowledge of the law whatsoever—substitutes a very long new clause for a comparatively short one. Is there any provision in subsections (1), (2) and (3) of the new clause which could not be undertaken by the courts under the terms of the clause as it now stands?
Lord Fraser of Carmyllie: There is a short answer. As the clause stands at the moment the Court of Session would be well capable of expanding the jurisdiction that it enjoys in cy pres. But when the decision was taken to extend that jurisdiction to the sheriff courts, while it is useful to have the greater experience of the superior court, it was thought nevertheless appropriate that the statutory rules that are to be followed should be set out in greater detail where they are to be applied potentially by an inferior court.
Lord Hughes: If nothing eventually goes to the sheriff court, the first three subsections will be unnecessary.
On Question, amendment agreed to.
Clause 9 [Small charities]:
[Amendment No. 124 not moved.]
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 125:
Page 11, line 11, after ("£5,000") insert ("as shown in the accounts for the last financial year preceding the date of the resolution made in terms of subsection 9(2) hereof).
The noble Lord said: The amendment relates to the provisions for charities having an annual income not exceeding £5,000 and for the reorganisation of the charities. It comes under the subheading "small charities". There is no point and no time at which the figure of £5,000 is to be determined as being the income of the charity. The purpose of the amendment is to give a point in time at which the trustees can decide to make the application under Clause 9. That point of time would be as shown in the accounts for the last financial year preceding the date of the resolution made under Clause 9(2).
It gives the trustee at least some guidance, because the income of charities fluctuates quite considerably. It gives the trustees the legal basis for applying to the court under Clause 9(1) if they were able to produce accounts to show that their annual income for the preceding year had not exceeded £5,000, whatever it might be for the current year. Logically, although I have not put an amendment down, if that principle were acceptable to the noble and learned Lord the Lord Advocate, a similar amendment might be made to Clause 10(1) dealing with the annual income not exceeding £1,000. I beg to move.
The Earl of Balfour: I refer to Clause 9. Perhaps the noble Lord, Lord Macaulay, will look at the last line of his amendment. It refers to "of subsection (9)(2) hereof. I feel that the "9" should be omitted. It should simply read subsection (2). I believe that that is the subsection referred to.
Lord Macaulay of Bragar: I accept that. I am obliged to the noble Lord.
Lord Fraser of Carmyllie: I do not think that it is necessary to define what is meant by annual income in this clause. We have defined the phrase in terms very similar to that suggested by the noble Lord, Lord Macaulay, at Clause 13(1). Given that definition—it is part of the interpretation clause affecting this part of the Bill—I should have thought that the amendment was unnecessary. However, in principle I understand the point that the noble Lord is trying to make. I hope that the present definition is sufficient to enable trustees to know whether they are within that £5,000 limit.
Lord Macaulay of Bragar: I am grateful to the noble and learned Lord for that explanation. In the light of it, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 126 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie: had given notice of his intention to move Amendment No. 127:
Page 11, line 16, leave out ("intentions of the founder of) and insert ("spirit of the trust deed or other document constituting").
The noble and learned Lord said: For reasons that I have explained with regard to Clause 9, I do not propose to move the amendment.
[Amendment No. 127 not moved.]
[Amendments Nos. 128 to 132 not moved.]
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 133:
Page 12, leave out lines 42 and 43 and insert ("apply to the Court of Session for a direction that the trust should not proceed with the modification or as the case may be winding up and transfer of funds and the court shall have power to make or refuse such direction subject to such modification as it thinks fit.").
The noble and learned Lord said: The noble and learned Lord has said that he will rewrite the clause. It seems to me that it should not be the Lord Advocate but the Court that should give the direction that the trust should not proceed with the modification or the winding-up. It seems totally inappropriate that it should be simply on the say-so of the Lord Advocate. I hope that the noble and learned Lord will take that idea into account when he rewrites Clause 9.
Perhaps he could also rewrite Clause 9 so that it is not confined to recognised bodies and covers all public trusts. Notwithstanding the Lord Advocate's intentions with regard to Clause 8, I do not see why small public trusts are to be totally excluded from the provision. I simply make those suggestions. I beg to move.
Lord Fraser of Carmyllie: I do not wish to elaborate at any great length in view of what I have said about amending the clause. I am not attracted to what the noble and learned Lord says about taking the power away from me. That is not because I wish to have any exclusive right on the matter. I suggest that the noble and learned Lord considers the relationship between Clauses 8 and 9. If for some reason I am dissatisfied with what is being proposed, that does not deprive the trustees of going to the court to have the matter dealt with, be it the Court of Session or the sheriff court. That procedure would still be open to them.
Clause 9, is an attempt to deal with a limited class of trust by a non-court procedure. If for one reason or another that fails—it may be because of the obduracy of the Lord Advocate of the day—that does not deprive the trustees of going to the court.
Lord Morton of Shuna: Having received a promise to look at it, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 9 agreed to.
5 p.m.
Clause 10 [Expenditure of capital]:
Lord Morton of Shuna Lord Morton of Shuna: had given notice of his intention to move Amendment No. 134:
Page 13, line 6, leave out paragraph (a) and insert:
("(a) have resolved that the charitable purposes of the trust are incapable of effective achievement because the income of the trust is too small to enable the trustees after meeting expenses to make any reasonably effective charitable application;").
The noble and learned Lord said: Clause 10 does not apply to charities. It applies to any trust. In rewording the clause perhaps it will be made clear whether it applies to any charity, to any public trust or to all trusts. On that understanding I shall not move the amendment.
[Amendment No. 134 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 135:
Page 13, line 8, at end insert ("and").
The noble and learned Lord said: This is a drafting amendment. I beg to move.
On Question, amendment agreed to.
[Amendment No. 136 not moved.]
Clause 10, as amended, agreed to.
Clause 11 [Minimum number of trustees]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie: moved Amendment No. 137:
Page 13, line 28, after second ("trust") insert ("both the Lord Advocate and").
The noble and learned Lord said: Clause 11 provides that where a recognised body is a trust trustees shall have the power to appoint additional trustees so that at any time the minimum number will be three. The amendment provides a similar discretionary power enabling me to appoint traditional trustees to bring the number up to three. Generally, three is regarded as the minimum number consistent with sound decision-making. However, I stress that three will not be an obligatory number. The clause simply provides an enabling power and reflects a recommendation of the Woodfield Report in respect of the charity commissioners in England and Wales. I beg to move.
On Question, amendment agreed to.
Clause 11, as amended, agreed to.
Clause 12 agreed to.
Clause 13 [Interpretation of Part I, regulations and orders]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 138:
Page 14, line 5, leave out ("balance sheet and income and expenditure account") and insert ("statement of accounts").
The noble and learned Lord said: The amendment is consequential on Amendment No. 144. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 139:
Page 14, line 8, at end insert:
(" "body" includes the sole trustee of any trust;").
The noble and learned Lord said: The amendment puts beyond doubt that a trust with only one trustee is a body for the purposes of present legislation. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 140 and 141 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie had given notice of his intention to move Amendment No. 142:
Page 14, line 43, leave out from ("section") to end of line 44 and insert ("and in respect of which any accounts have been prepared for a period up to a date not more than 12 months before such commencement, the period beginning with that date;
(aa) in the case of a body which is recognised at such commencement and in respect of which no such accounts have been prepared, the period beginning with such commencement;").
The noble and learned Lord said: We have received a number of critical comments about the amendment. Accordingly, I do not move it.
[Amendment No. 142 not moved.]
Clause 13, as amended, agreed to.
Clause 14 [The Scottish Conveyancing and Confirmation Practitioners Board]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 143:
Page 15, line 23, leave out ("Scottish Conveyancing and Confirmation Practitioners Board") and insert ("Scottish Legal Services Board").
The noble Lord said: I wish to speak also to Amendments Nos. 147A, 147C and 147F. They are consequential amendments upon changing the name of the board from the Scottish Conveyancing and Confirmation Practitioners Board to the Scottish Legal Services Board and inserting a new schedule at Amendment No. 147C.
The broad purpose of the amendments is to provide greater public scrutiny of the provision of legal services and to have a board which will have an advisory role in relation to the maintenance and development of standards in the education, training and conduct of those offering legal services.
Amendment No. 147C carries with it the various functions which the Scottish Legal Services Board would fulfil. I do not wish to describe them in detail because no doubt those who are interested will have read the amendment. However, they fall under various headings: general education and training; training in advocacy and the conduct of litigation; practical training in other areas; general advisory functions; and specialisation schemes. The latter may be appropriate to today when specialisation appears to be the name of the game in the development of the law.
The amendment has been brought forward by the Scottish Consumer Council which supports the establishment of an independent statutory body charged with drawing up the framework for the education, training and supervision of all legal services. The consumer council envisages that such a body would be made up of elected representatives from the main groupings of legal services, providers and trainers, with strong representation from lay persons preferably with a background in consumer affairs or the voluntary sector. The body would be charged with the responsibility of estabilishing the basic principles in relation to education, training and recognition of specialisms, reserved areas, restrictive practices and so forth.
The amendment is put forward as a probing amendment in order to ascertain whether its principle meets with the approval of the Government. There is a feeling north of the Border that there should be an advisory body in Scotland which would be equivalent to the Lord Chancellor's Advisory Committee on Legal Education and Conduct as provided for in the Courts and Legal Services Bill. At present there is no such body in Scotland.
The word "consumer" has been used to describe people using the law and that met with considerable criticism. I remember the noble Lord, Lord Grimond, saying that he did not consume the law but used it. Perhaps the word "users" may be better. However, the principle behind the amendment is that there should be more public involvement in the overview of what is happening in legal circles in Scotland. There are user-consultative committees for the railways, gas, electricity, press and broadcasting. There is no reason in principle why there should not be such a board in Scotland to ensure that the law is developing not only in keeping with the wishes of the lawyers but those of the people. I beg to move.
The Deputy Chairman of Committees (Lord Nugent of Guildford): Amendment No. 143 pre-empts Amendment No. 144 which I cannot move if this amendment is agreed to. Amendment No. 147A, to which the noble Lord spoke, pre-empts Amendment No. 147B. If carried, I cannot put Amendment No. 147B. Amendment No. 147C, to which the noble Lord also spoke, contains a misprint. In the first line "line 2" should read "line 3".
Lord McCluskey: Amendment No. 143 is associated with Amendment No. 155 which I understand to be at the heart of the matter. On 1st February 1990 Lynne Macmillan, the legal advisory officer to the Scottish Consumer Council, wrote to The Scotsman complaining that some noble Lords who spoke on Second Reading appeared to be concerned with the interests of lawyers and not with those which were the proper concern of the council.
I should explain to the Committee that those of us who spoke on Second Reading were told that we should speak for some 12 minutes and many matters of extremely serious concern had to be dealt with in that time. I do not believe that the public interest then expressed shows a lack of concern for the consumer interest.
I am happy to support the principle of this amendment and in particular the principle which lies behind the new schedule contained in Amendment No. 155. The heart of the matter is that a board is to be set up and that board is to keep under review the education and training of those who are to provide legal services. It is to consider the need for continued education and steps which the professional bodies might take. The board is essentially a study, advisory and recommending board.
Finally, the board having made up its mind on those matters within its purview, it may make recommendations. That is perfectly proper for the board, representing consumer interests. I welcome that. Those recommendations will be made in a number of ways which are specified, as Members of the Committee will see, in paragraph 4 of the schedule. As I understand it, those may be particularly addressed to the dean of the faculty and the Council of the Law Society. Under the Bill, it is their responsibility to have regard to those recommendations. So far, I go along entirely with what is proposed.

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There may be some difficulties about specialisation schemes, but, again, when one looks at the matter closely one sees that the board is making recommendations to responsible bodies. It seems to me entirely right in principle that a body of this kind which represents the consumer interest and not just the legal interest should be able to make such recommendations and place them before the professional bodies. It is a very modest amendment. I do not believe that it is intended by the noble Lord, Lord Macaulay, or, indeed, by those who sponsored it initially to be accepted at this stage. However, I am sure that the Committee will be anxious to hear in due course whether the noble and learned Lord the Lord Advocate is willing to accept this approach.
Baroness Carnegy of Lour: I have had considerable discussions with the Scottish Consumer Council. I do not feel that I can support this amendment. I am somewhat surprised to hear what the noble and learned Lord, Lord McCluskey, said because my understanding has always been—and I am not a professional lawyer, conveyancer or anything like that—that those who should review, watch, examine and develop their own training are the professionals whose training it is. This is an area of professional activity which should not have other people chipping in upon it.
I appreciate what the noble learned Lord and the noble Lord, Lord Macaulay of Bragar, have said about the desirability of wider involvement of people in these matters. However, I do not believe that even recommending what should happen about training, let alone keeping it under review, is a good idea because when people carry out that role they chip at the people who are responsible and try to force the issue. Of course they do. I do not believe that that is appropriate. I understand what the Scottish Consumer Council is trying to achieve but I do not believe that this amendment achieves that objective. Therefore, I hope that my noble and learned friend will not accept it.
5.15 p.m.
Lord Morton of Shuna: Like my noble and learned friend Lord McCluskey, I am generally in favour of some sort of advisory board. However, there is no assistance as to who are to be the members. I am also not very happy with the way in which the consumer interest has been represented in previous cases in the law. For example, the small claims procedure went through with a lot of assistance from the consumer interest. However, that has raised difficulties because it deals very well with the tradesman who is suing for his account or the person who is suing the tradesman for bad work but it raises terrible problems for the small claim which is a personal injury. The case of that type of injured person does not seem to be met by the consumer interest as at present constituted in the consumer council and other consumer bodies.
The other difficulty from the consumer interest point of view is that a very large part of legal work is concerned with crime. I do not know that the consumer interest in crime should be represented. There, the consumer interest is those being accused
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of crime, whether they are acquitted or convicted. If we are to have a body representing users of legal services, it should widely represent users. If we are talking about crime, there should be some representation of victims. Apart from that, I give a cautious welcome to the general idea.
The Earl of Selkirk: I closely associate myself with the words of the noble and learned Lord, Lord McCluskey. We have had this Bill for barely three months. Previous to that, this matter has not been discussed in public at all. Of course there have been exchanges of letters and we have told each other our views. However, this is a fundamental change in what is going on in Scottish law, which has been evolving steadily for some 500 years.
We must consider certain factors. We are living in an age when a great body of the general public is cleverer than it was. Those people want to know what is going on in legal circles. With great respect to the members of the faculty of which I am a member—although I am quite unaccustomed to working at present—it is a closed book. Those outside do not really know what is going on inside. I believe that they should be given the opportunity of knowing.
This clause sets up an entirely new professional body. It sets it up for the express purpose of carrying out a very limited range of work. There are about 6,000 law agencies in Scotland in about 10 separate organisations. It is quite obvious that in certain rural areas jobs will be lost and firms may have to close down if a large lump of their work is taken out.
This matter warrants very careful examination. This Bill is largely copied from the English Bill and some defects in the English Bill may be repeated here. For example, in the Lord Chancellor's advisory committee report on the future of legal services it is stated:
"We are concerned that the proposals have a potential for reducing the quality and accessibility of the services available".
Those words were applied by the advisory committee to the English Bill and I contend that they apply equally well to this Bill. That is why I ask that this matter should be looked at very much more closely than at present.
One can ask this question: if the Government are to spend money—and they do not know how much money they are to spend, although the introduction to the Bill says that money will be spent on this—and that money is used for turning other professional people out of a job, is that fair trading? It is right to ask that question. Is it fair trading for the Government deliberately to set up an organisation which will turn other people out of a job?
This concerns conveyancing work. That is being done perfectly well at present; there is no doubt about that. The question is: would it be better if it were done otherwise? What do those conveyancing specialists know? How far is the training taken? Does it encompass any problems which may arise in any piece of conveyancing? Why do they not become solicitors in the full sense? What is the benefit of being halfway to this position.

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The other point which arises is that the public want to know a great deal more about what is happening in legal circles. I should like to see this proposal given a full examination.
Lord McCluskey: I do not wish to follow the noble Earl at this stage in relation to the latter part of what he said, although these matters will certainly come under discussion at a later stage. I confine myself to matters raised in reply to the noble Lord, Lord Macaulay, and myself.
With regard to the comment of the noble Baroness, of course I support the idea that the professions should regulate themselves. The amendment proposes nothing more than that there should be a board which makes suggestions and that those suggestions should be taken into account. It provides an opportunity for a forum—the board on the one side and professional bodies on the other—to meet and discuss matters of common concern. Each side has something to teach and something to learn.
Secondly, I, and no doubt many others, have talked for many years about the unmet need for legal services. A great many people never encounter lawyers at all. Many in the community have problems with housing, social security, dismissal and the community charge, if I may so refer to it. Yet they will not see a lawyer. The citizens advice bureaux and similar organisations encounter these people. The CAB makes common cause with the consumer council in this matter. There is scope for the bodies to come together with professional bodies in order to identify areas of unmet need and to provide ways in which that unmet need might be met.
I will not accept technical criticism; it is not my amendment. My noble and learned friend Lord Morton should be careful about making technical criticism. Some of his amendments and some of mine are pretty bad, as we shall see as the evening wears on. It would be a pity to disfigure the debate by looking; at technical matters rather than principles. I urge the noble and learned Lord the Lord Advocate to respond positively to the amendment.
Lord Macaulay of Bragar: I shall make two points. The basis of the board appears in paragraph 1(2) which states:
"The Board shall give such advice as it thinks appropriate with a view to ensuring that the education and training of those who offer to provide legal services is relevant to the needs of the legal practice and"—
most important of all—
"to the efficient delivery of legal services to the public".
In Scotland we have a current example which is the subject of great discussion among the public; whether the Crown should have the right to appeal against sentences which are imposed by judges and which appear in the public mind to be absurd. I do not criticise any sentences recently passed, but as a matter of general principle that is a good example of the type of subject raised by the public on which a legal services board could make observations. We should remember—lawyers tend to forget—that the law does not belong to the lawyers. It belongs to the people. It is for the people and not for the lawyers.
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The proposals in Amendment No. 155—I apologise for not referring to it—are to bring public influence to bear to some extent in the ongoing administration of the law. I cannot see any objection to the voice of the people at least being heard. It has been said many times that there is no harm in giving advice; it does not need to be taken, but it can at least be considered.
I was rather disappointed that the noble Baroness, Lady Carnegy, was against this proposal. I thought she might have seen her way to follow it at least in principle and allow the details to be worked out in due course.
Baroness Carnegy of Lour: I feel quite strongly about this matter. Some wonderful things have been said about the law belonging to the people. I hope that that sentiment will be reflected in subsequent discussion. I certainly agree with it.
I have had quite a lot to do with training, albeit in voluntary organisations. When one reviews and advises on training, one reviews methods of training—objectives, but also methods of training—as to whether they work and whether standards are being achieved. It is asking people to be puppets to put them on a body to do that in order that lawyers may say that they have listened, but they have not done it. They may say, "We have listened and have done it", occasionally. That is the kind of thing Parliament should not do. For all I know my noble and learned friend may accept the amendment, but I do not agree with it.
Lord Fraser of Carmyllie: I recognise that in these amendments there is a desire to establish in Scotland a body similar to that of the Lord Chancellor's Advisory Committee on Legal Education and Conduct to be established under the Courts and Legal Services Bill. I am surprised so early on to find myself in agreement with the noble and learned Lord, Lord McCluskey. It is fortuitous and indeed felicitous that the first debate on this part of the Bill has at the centre of its attention the services that are provided to the consumer of legal services—a term I use now that the noble Lord, Lord Grimond has disappeared.
As I understand the amendments, they graft an advisory role on to the executive role proposed for the Scottish Conveyancing and Confirmation Practitioners Board. I am not confident that the two functions can reasonably be combined. The Scottish Conveyancing and Confirmation Practitioners Board is being give a specific remit to regulate the provision of these services by new providers. We intend that the board should, at least after its inital period of establishment, become self-financing with its cost being paid out of fees levied on practitioners. Indeed, there are some amendments to come before the Committee which seek to ensure self-financing from the moment of establishment.
It hardly needs saying that if the board were to have a wider advisory role at the same time as it discharged an executive one, it would be wholly inappropriate to fund it in the same way.
I do not for a moment deny the important part that those who use legal services can play in suggesting

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change; criticising existing practices and bringing to bear other points of view; and generally influencing the way things are done in a wholly responsible, constructive and creative manner. However, it is not necessary to establish formal machinery for that process to function satisfactorily. I do not want to suggest that all the important issues affecting the provision of legal services in Scotland can be settled by a cosy establishment clique which might be out of touch with the needs and aspirations of the vast majority of the population in Scotland. The way our jurisdiction operates, given its size, indicates that there is possibly greater scope in Scotland for exchanging views and forming decisions—sometimes formally and sometimes informally—then there may be in this greater part of the kingdom.
Before one looks at what is proposed by the amendment it is as well to remember—and this may be of some interest to my noble friend Lady Carnegy—that there are in place in Scotland already a number of important standing arrangements for the consumer voice to be heard in the area of legal affairs. First, the development of the office of the Scottish Lay Observer played a considerable part in guiding the self-regulation of the solicitor profession in recent years. The Law Society itself would acknowledge that the previous holder of the office was a useful commentator in a number of matters affecting it.
Secondly, the arrangement of lay or consumer intervention is underscored by the inclusion of lay members not only on the solicitors' disciplinary tribunal but also on the Law Society's own complaints committees. Furthermore, the Scottish Legal Aid Board, charged with advising the Secretary of State for Scotland in relation to the provision of legal services provided under the legal aid legislation, now has a majority of lay members.
The Bill will significantly increase the role of consumer interests by the expansion of the role of the Scottish Lay Observer into the completely new office of legal ombudsman with a remit extending over the whole range of legal services. The membership—this point was raised in relation to the amendment—proposed for the Scottish Conveyancing and Confirmation Practitioners Board would have a strong lay voice. Its membership would include those specifically interested in consumer affairs.
I should also emphasise that the Scottish board will have a much wider remit than the English conveyancing board. For one thing, it will deal not only with conveyancing but also with confirmation and with the regulation of qualified conveyancers who will correspond broadly with the English licensed conveyancers. Unlike its English counterpart, the Scottish board will have a comprehensive role in dealing with complaints.
It may be of assistance if I indicate another matter of consumer input. The noble Lords, Lord Carmichael and Lord Macaulay, have a proposal at a later stage in the Bill to add non-legal members to the sheriff court rules council. While I am not prepared to accept that amendment as it stands I
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can indicate at this stage, because it is of further consumer interest, that I am prepared to look favourably at some change in that respect.
The Bill does not seek to interfere with existing non-statutory arrangements for determining and monitoring the content of courses in legal education and practice. While I take the point made by the noble and learned Lord, Lord McCluskey, that where the board is to comment on matters of education it is to do so in an advisory capacity and has no power to compel, these matters are largely determined in Scotland at present by the Faculty of Advocates, the Law Society and the educational institutions under the general oversight of the Joint Standing Committee for Legal Education. In principle I can see no reason to exclude consumer representatives from making a contribution in this area, but I should have thought that it was for them to approach it themselves and I should like to see the authority and worth of that joint standing committee maintained.
I recognise the proper underlying desire that Scottish users of legal services should be known and that the law should not simply be for lawyers. However, from the way we have developed a number of arrangements across the board, as I have outlined, I suggest that the need for a formal mechanism as proposed by the amendment is unnecessary in the smaller jurisdiction of Scotland.
5.30 p.m.
Lord Macaulay of Bragar: I am grateful to the noble and learned Lord for the answers given to the various contributions to what has been an interesting debate. I should say that not only does the Scottish Consumer Council back this proposal but the CAB is also anxious that there should be an independent body set up to oversee professional standards of education and training requirements.
It is right that there is a lay input into the various committees to which the noble and learned Lord the Lord Advocate referred, but that does not exclude the setting up of a committee which sits permanently, receiving complaints or suggestions from the public as a whole and then, if they are accepted, putting them into force through the Government.
People may say that the very shape of this Bill indicates the need for a committee or board to see what should be done in Scotland as time goes on instead of ending up with this Bill which has already been referred to as a liquorice all-sorts Bill, with additions to it every day because of the reference to miscellaneous provisions in the Title. If there had perhaps been a board to deal with matters as they developed, year by year, we would not be in the ludicrous position of considering this Bill.
I am sorry that the Government do not see fit even to take away the amendment and give it some consideration, but I do not intend to divide the Committee on this issue and I therefore ask leave to withdraw the amendment.
Lord McCluskey: Before the noble Lord withdraws his amendment, may I first say that the Lord Advocate's reply appears to recognise a number of facts. First, is the idea that the Legal Services

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Council, or the equivalent of the Lord Chancellor's Advisory Committee on Legal Education and Conduct, is not appropriate for Scotland? I am delighted that the Lord Advocate has recognised, in this regard, that Scotland is another country. I hope that that realisation—which is the first sign I have seen of intelligence from the Lord Advocate in this debate—will instruct his approach to the many other amendments which are to follow.
I have one other point to make. If the legal profession in its various manifestations does not listen to the voice of such bodies as the Scottish Consumer Council and the CAB in relation to these matters undoubtedly those bodies will support, and be entitled to support, the need for lay advocates in the courts. If the professions say that there should not be lay advocates then the professions must be prepared to provide all the advocacy required at whatever level. Therefore, even if the Government are not listening to this proposal I hope that the professions are.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 144:
Page 15, line 24, leave out ("Confirmation") and insert ("Executry").
The noble and learned Lord said: In moving this amendment I speak also to Amendments Nos. 145, 147D, 148, 149C, 152A to 152E, 153A, 154, 154A, 182, 183, 184 to 187, 190, 191, 193, 194–197, 202, 204, 237 to 209, 210A, 211, 251, 256, 260 and 261. I am afraid that there is still much of the Bill left!
This is a simple amendment. It deletes the word "Confirmation" and inserts the word "Executry". The other amendments do that throughout the Bill and give a definition of executry practice. Presumably the purpose of having the licensed confirmation practitioner is that it is thought to be in the interests of consumers, the lay clients. The purpose of the amendments is to make sure that the client, in the event of a death and going to have his relative's executry dealt with by a non-lawyer, receives the same protection as he would if he had it done by a solicitor.
If you go to a solicitor to have your relative's estate wound up you have the guarantee that the solicitor is insured for negligence. You have the guarantee that ii" the solicitor pockets the funds the other solicitors forming the Law Society of Scotland will pay whatever he takes. However, if you go to someone else who is a licensed confirmation practitioner the Bill provides no measure whatever to deal with such situations. The confirmation practitioner will inevitably be doing the ingathering of the estate, and so on. Therefore, I very much hope that the Government will see the need to provide the consumers, the clients, with the added protection that they already receive from a solicitor. I beg to move.
Lord McCluskey: I support this amendment. I do not went to waste time rehearsing all the arguments because I am sure that they have been put to the Government by the Law Society of Scotland. At the
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heart of it, in my judgment, is that there is no statement in the Bill regarding the loss of consumer safeguards in regard to the Government's proposals. There is no proposal for a code of conduct in regard to the handling of executries. There is no proposal for a regulatory authority to authorise appropriate persons to investigate complaints or to deal with disciplinary matters.
I am indebted to the Law Society of Scotland for providing us with information that includes the fact that each year 50,000 people in Scotland inherit from relatives and others. The sums involved may be small or very large indeed. There need to be safeguards, particularly with the new kind of regime. What lies behind this series of amendments is the need for such safeguards. In the meantime I shall say no more until I have heard what the noble and learned Lord the Lord Advocate has to say in response to these proposals which I believe were put to him before today.
Lord Fraser of Carmyllie: I am grateful to the noble and learned Lords for the brief introduction and support that they have provided for this amendment. I say immediately that I understand why they are concerned by the amendment at the centre of the matter relating to Clause 19 where confirmation services are defined. In that clause confirmation services are defined as,
"the drawing and preparation of papers on which to found or oppose an application for a grant of confirmation of executors".
It will be recognised why that amendment was first seized on. It is within that narrow area of activity that at present solicitors in Scotland enjoy a monopoly. While I recognise the concern expressed about that, what is put forward in substitution—I believe the appropriate amendment is No. 210A—as executry services is defined as,
"relating to the winding up of the estates of deceased persons, including the giving of advice and the drawing and preparation of papers on which to found or oppose an application for a grant of confirmation of executors".
I am concerned that that amendment is too wide. For example, I am not entirely sure who would be caught by the giving of advice. As noble and learned Lords will appreciate readily enough, within Scotland already a significant proportion, if not the majority—I am not certain of my facts on this—of executry work is done by solicitors. Also a significant proportion is carried out by a number of institutions, primarily the major banks in Scotland.
There may be comment about the fees which they charge and issues of that kind. However, I am not conscious that there is any sense of public unrest or unease that the banks are failing to fulfil their obligations in relation to winding up. I would like the noble and learned Lord to withdraw his amendment because I wish to have a further look at the matter with my right honourable friend the Secretary of State for Scotland. It would be gratuitously offensive to those major banks, for example, to suggest by leaping into this matter that in some way there is a less than satisfactory performance by them. Their interests need to be taken into account.
Furthermore, I am very anxious to ensure that we do not include within a new regime affecting

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executry services, if I can temporarily adopt the noble and learned Lord's terminology, a raft of regulations concerning matters already covered by other arrangements. For example, one of the issues that might be properly covered by executry services is the giving of advice on investment to beneficiaries and the taking of decisions by telling an executor whether it is desirable to sell a house at a particular time. I am concerned that by further change we should not introduce regulations to cover matters which are already sufficiently and satisfactorily dealt with by, for example, the Financial Services Act.
I find this a very difficult area and the question of definition at the centre of the problem is a particularly difficult one. Given the approach that I am offering, I hope that the noble and learned Lord will withdraw his amendment.
5.45 p.m.
Lord Gray of Contin: Before the noble and learned Lord withdraws the amendment, if he is going to, there are two points that I wish to make. I am delighted that my noble and learned friend is in such a benevolent mood this evening. He has already rewritten one clause for us and has agreed to rewrite another. At one stage I was tempted to slip forward a manuscript amendment, wondering whether he might be prepared to withdraw Part II of the Bill altogether. There are a great many people who feel extremely unhappy about it. I am very interested in what he has said in reply to the previous amendment.
My noble and learned friend spoke about banks. He also mentioned solicitors working for banks who in the past have been responsible for winding up estates, executries and confirmations. That is all very well, but if those solicitors are now to be asked to advise the relatives of a deceased on financial matters, is that not running completely against some of the other financial legislation which has passed through this House in recent months?
I suggest to my noble and learned friend that he thinks very carefully indeed about that point. Is the guidance which is to be given wholly independent? If a solicitor is in the employment of a bank, is there not a great tendency that the guidance given to the relatives of a deceased will be weighted towards the financial interests of the bank? Those financial interests are very wide, including investment trusts and financial interests with various other institutions. I suggest that my noble and learned friend looks very carefully into his thinking on that matter.
Lord Mackie of Benshie: I rise to support this enormous bunch of amendments or the general intention behind them put forward by the noble and learned Lord, Lord Morton of Shuna. From the layman's point of view I support these amendments because if the Government wish to create a narrow band of inferior lawyers, as appears to be the case, and call them conveyancers or executors, surely one must give the public the same protection as they enjoy as regards to solicitors. When we come to the debate on clause stand part I shall question the need for the whole provision. If the Government are determined to produce this new body of people in
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line with these amendments they must protect the public in exactly the same way as is done when one goes to a solicitor.
The Earl of Balfour: I hope that the Committee will forgive me for giving a personal example on an experience that I had. I had the responsibility of winding up an aunt's estate. All her finances were in stocks and shares, some in this country and some elsewhere. I went to her bank and it advised me to go to its trustee branch. I was most impressed by what it did. The trustee branch was able to dispose of all her funds and everything else. I was somewhat surprised that at the end of the transaction and in order to have everything finally wound up I still had to seek the services of a solicitor. If this Bill becomes an Act, will a body such as a bank be able to carry out the whole job without someone having to go to a solicitor or will one still have to go to a solicitor? The solicitor I went to advised me that it would probably have been cheaper if I had gone to him. As I say, I went to the bank because there was money in several other countries.
Lord McCluskey: I very much welcome what the noble and learned Lord the Lord Advocate has said. However, I do not want him to misunderstand the position. I do not support the notion that the banks are not to be trusted. I do not believe that the Law Society of Scotland would advance any such notion. The concern is that under Clause 17, as the noble Lord, Lord Mackie of Benshie, recognised, people who are not solicitors or connected with banks are encouraged to come into this field.
I take the view that if the field is opened up to solicitors, banks and purchasers and whoever else is invited to come in under Clause 17, then a level playing field should be made available for them all. Equal protection should be provided for persons who go to the one or the other. Excellent protection is already provided by the Law Society of Scotland in respect of people who go to solicitors. Excellent protection is provided for people who seek the services of banks. The idea therefore is to ensure that the same protection is provided in respect of all these practitioners, even the new ones who are to be brought into existence under Clause 17.
I hope that these matters are taken on board by the noble and learned Lord and his right honourable friend. It is not a question of trying to keep the banks out. But if the banks are in, let them observe the same rules, and let us create a set of rules which will protect the public in respect of the Clause 17 practitioner.
Lord Fraser of Carmyllie: Perhaps I may reply to the further points that have arisen. I must have expressed myself poorly to the noble Lord, Lord Gray of Contin. I referred to the provision of financial services by those in banks and indeed solicitors' offices. If they were to give investment advice they would find themselves covered by other regulations in relation to the providing of that investment advice.
I say to the noble Earl, Lord Balfour, that if the Bill goes through unamended it would be open to an

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institution such as a bank to become a confirmation practitioner and carry out that essential piece of the process—the obtaining of confirmation.
I am grateful to the noble and learned Lord, Lord McCluskey, for his appreciation that the banks have not caused public outrage in the way that they have discharged their obligations in relation to windings-up. It is because of my understanding of his stance that I want to look at the matter again. There is the potential for the emergence of a new group and it is the appropriate definition of the services which they provide that properly requires regulation.
Lord Morton of Shuna: In moving this amendment I do not think that I mentioned banks at all. I have certainly no criticism of banks. Those who give financial advice are required to obey the rules laid down by the Financial Services Act, if they understand them. The necessity is to provide an adequate cover. I am glad that the noble and learned Lord the Lord Advocate seems to appreciate that. Anyone apparently can apply under Clause 17 to become a confirmation practitioner, and therefore those who do should have exactly the same obligations, cover and guarantees as are provided by the solicitor side of the profession. But on the understanding that the point will be looked at, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 145 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 145A:
Page 15, line 27, after ("solicitors") insert ("providing such services in the course of practising as solicitors").
The noble and learned Lord said: This amendment clarifies the purpose of the provisions in the Bill relating to conveyancing practitioners in relation to solicitors. The amendment makes it quite clear that a practising solicitor will be able to offer conveyancing services to the public as a conveyancing practitioner if he has registered as such. Clause 14(3) is intended to prevent any professional body from making rules to prohibit its members from acting as conveyancing practitioners or as employees of those practitioners. For the avoidance of doubt, the scope of the board's jurisdiction is delineated in this amendment to exclude solicitors who provide conveyancing services as such and to include solicitors who provide conveyancing services in their capacity as conveyancing practitioners provided they are registered as such. The amendment seeks to clarify the matter. I beg to move.
On Question, amendment agreed to.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 146:
Page 15, line 31, leave out ("grants") and insert ("loans").
The noble and learned Lord said: This amendment again revives the hackneyed cliché of the level playing field. It is grouped with Amendments Nos. 146A, 147 and 152. It seeks to ensure that the body is self-financing, as is the Law Society of Scotland.
It will be a completely unlevel playing field if the Government subsidise this new board and provide the whole cost of it. The Law Society has to provide the whole cost of regulation and guarantee on the solicitors' side. I hope that I do not have to expand on the matter at any great length as there was a hint earlier from the noble and learned Lord that he accepted at least the spirit of the amendment. I beg to move.
Lord McCluskey: I have my name to this amendment and I support my noble and learned friend Lord Morton. The point can be put quite sharply. Public funding was not used to establish the Law Society of Scotland in 1949. It was required to be and ever since has been self-financing. Those regulated by the Securities and Investments Board were required to fund the establishment of the board by the repayment of its initial expenses. Adopting the philosophy of the level playing field of which we have heard so much, if the body is to regulate the activities of the paralegals it should itself be self-financing and should be financed out of their activities.
Lord Mackie of Benshie: If the body is to be worth while and is to consist of responsible people the Government will be quite safe in loaning it the money. They probably have in mind that it will be difficult to set up if they lend the money instead of making a grant. If that is the case, the Government might think again about the body.
Lord Fraser of Carmyllie: I am grateful to the noble Lord for that observation. I acknowledge the concerns expressed about the apparent imbalance between the publicly funded conveyancing board regulating the provision of conveyancing services by conveyancing practitioners and the self-regulating body of solicitors providing identical services funded entirely by the profession itself. I believe, however, that the relatively small amounts of public money which we expect might be needed to get the board up and running may well represent a cost-effective means of establishing a satisfactory regulatory regime for the protection of clients' interests in the initial stages of the new arrangement.
I do not envisage that the board, once fully established, would have much need to call on public funds. But since it is not possible to predict how long it will take for the board to become entirely self-financing, I would not like to put its coming into being at risk by failing to provide for financial support. Having said that, I am prepared to consider the proposition that some at least of the board's funds might be provided by way of loan rather than by grant or by way of guarantee where there is insufficient fee income to cover all costs. I hope the noble and learned Lord appreciates that once it is established it is anticipated that the fee income will be sufficient.
Particular mention has been made of the Securities and Investments Board. The financing arrangements for that are complicated but they are essentially of a self-financing character. That would ultimately be

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the intention. But I shall look again at the matter of providing for it by way of loan rather than public grant.
Lord McCluskey: I looked at the financial and manpower effects of the Bill but I could not find any estimate of what the cost is likely to be. The Lord Advocate has said that the costs are likely to be relatively small. What are the costs likely to be? If he is considering meeting these costs initially not by grant but by loan, is it intended that the loan will be at ordinary commercial rates? The logic of the case made by the amendment is unanswerable and is certainly so far unanswered. Can the Lord Advocate answer these questions? What does he mean by "relatively small"? How much is that? Is he thinking of a loan at commercial rates of interest?
6 p.m.
Lord Fraser of Carmyllie: Because I indicated to the noble Lord that I would take the matter of a loan away and consider it, I do not think that I can answer that question. However, the noble and learned Lord is perfectly correct to look to what is set out in the Explanatory and Financial Memorandum under the heading of "Financial and manpower effects of the Bill". It states there that,
"Under clause 14 and Schedule 1 provision is made to set up a Scottish Conveyancing and Confirmation Practitioners Board. The Board will become self-financing after an initial period".
I cannot give a precise figure in this respect, but I shall do what I can to ascertain the information and, if necessary, I shall write to the noble and learned Lord.
The Earl of Selkirk: Is the noble and learned Lord the Lord Advocate saying that the Scottish Office has made no estimate whatever as to how much the scheme will cost?
Lord Fraser of Carmyllie: The issue here is not that there should be a continuing cost. If there had to be a continuing cost, it would have been most important to indicate what it would be. We are talking about the setting up and commencing costs. I do not think that I can expand upon what is set out in the Explanatory and Financial Memorandum. As I said when attempting to answer the noble and learned Lord, Lord McCluskey, if I cannot produce such a figure before we next consider the matter, I shall certainly write to him with the relevant information. Probably the best estimate I can give is about £100,000.
Lord McCluskey: Perhaps the noble and learned Lord the Lord Advocate will remember that the Channel Tunnel—if I may refer to the Explanatory and Financial Memorandum of that Bill—was to be self-financing after an initial period. But the Government have set their heart and mind against providing any initial finance. Surely the logic of the Channel Tunnel argument applies equally to this funny board.
Lord Morton of Shuna: If my memory is correct, a self-financing hope was expressed about the Forth Road Bridge. There was an attempt at some point
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to ensure that it would be self-financing. There is one aspect of the matter which I cannot understand. The Government were responsible for the financial services legislation and they made it quite clear in that Bill, which struggled through this House for many months, that each of these bodies was to be wholly self-regulating. Therefore, why is there not one hint of that in this Bill? Does it mean that the Government are aware that there is no demand for the services of the board and therefore it cannot ever be self-financing? However, on the basis that the matter is to be looked into, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 146A:
Page 15, line 32, after ("expenses") insert ("he considers to have been reasonably").
The noble Lord said: This is a small amendment to Clause 14(1)(2), which at present states that,
"The Secretary of State may make grants to the Board towards expenses incurred, or to be incurred, by them in connection with—
(a) The initial establishment of the Board; and
(b) The discharge by the Board of their functions".
We find those functions under Schedule 1 to the Bill. They include employing,
"such officers and servants as they think fit, on such terms as to remuneration and conditions of service as the Board may determine".
Paragraph 11 of the schedule deals with the performance of the board's functions. It gives the board power,
"(a) to enter into any contract or agreement, including any contract or agreement to acquire or dispose of land;
(b) to invest money; and
(c) to charge such fees as they may determine in respect of the discharge of their functions".
As the clause presently reads, there is no limit upon the demands which can be made upon the Secretary of State by the board in the exercise of its functions. The purpose of the amendment is to give the Secretary of State the power to determine whether he considers that the expenditure has been reasonable in the discharge of its powers. Accordingly, he can cut the payments if he thinks that the expense has been unnecessarily incurred. I beg to move.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie The way matters are framed in the clause at present seems to me to be sufficient. I therefore invite the noble Lord to withdraw his amendment.
Lord Macaulay of Bragar Lord Macaulay of Bragar I am grateful for that very short answer from the noble and learned Lord the Lord Advocate. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 147 not moved.]
The Deputy Chairman of Committees (The Earl of Listowel): Before I call the next amendment, I should point out to the Committee that, if Amendment No. 147A is agreed to, I cannot call Amendment No. 147B.
[Amendment No. 147A not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 147B:
Page 15, line 35, leave out ("Schedule 1 to this Act") and insert ("Part I of Schedule 1 to this Act (constitution duties, powers and status of the Board)").
The noble and learned Lord said: The first of these two amendments is consequential upon the reorganisation of Schedule 1 to accommodate Part II, which deals with the powers of investigation of the Scottish Conveyancing and Confirmation Practitioners Board. Part II is inserted by the third amendment under consideration. I should point out that this amendment has been linked with other amendments; namely, Amendments Nos. 147E, 154C and 202B.
Paragraph 19 in a new provision which enables the board to obtain a court order to require the production of documents or information relevant to an investigation that it is conducting. That power corresponds closely to a power available to the Council of the Law Society of Scotland in relation to documents which the council seeks in relation to investigation into allegations that a solicitor has been guilty of dishonesty.
The powers will be a useful tool for the board in fulfilment of a disciplinary role under the Bill. It is a further example of the Government's clear determination to ensure that a level playing field exists between solicitors and any new providers of existing conveyancing services. I beg to move.
On Question, amendment agreed to.
On Question, Whether Clause 14, as amended, shall stand part of the Bill?
Lord Morton of Shuna: I oppose the Question, That this clause shall stand part of the Bill. The need for a conveyancing board, or a conveyancing and confirmation board, is not shown in any way except in the Government's apparent determination to produce this type of provision because it has been introduced in England, or is being introduced by way of the Courts and Legal Services Bill. There is precisely no demand that can be measured in Scotland for this proposition. There is no sign of buildings societies, banks or any one else leaping up and down and saying, "We are being prevented from providing conveyancing services". The Scottish based building societies make a point of advertising the fact that they have no intention of doing so. It is very difficult to see why the Government think that the situation could be otherwise.
I say that because, if the Government did think that there was a great demand for these conveyancing services to be provided by banks and building societies, no doubt they would have taken the financial provisions out of the Financial Services Act and put them into the Bill so as to make the board self-financing. But, as we have just discussed, that provision is not there. The Government are apparently prepared to put £100,000 of public money into supporting a board when there is no sign that even one body wishes to be a conveyancing practitioner as this clause would provide.
At present there is a choice of at least 1,000 competing firms of independent solicitors.
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Certainly, as regards advertisements, they compete as to their charges. They carry out very competitive work in trying to gain clients. The situation has changed entirely from the time of the Royal Commission so ably chaired by the noble Lord, Lord Hughes, and, as recognised by the Consumer Council, the Bill's proposals will very probably have an adverse effect on the provision of legal services, especially in rural areas.
The Government seem regularly deliberately to misunderstand the proposition. It is not that conveyancing subsidises legal aid and criminal work. It is that if there is only a certain amount of work an office becomes unviable. That is the risk. If we remove conveyancing from small towns there will be no lawyer; there will be insufficient work for one and lawyers will have to go to the big cities. That is entirely inappropriate. This is a doctrinaire proposal which has no basis in any public demand. I contest the proposition that this clause should stand part of the Bill.
Lord McCluskey: I wish to support my noble and learned friend in this matter. What we have been calling a board is just a quango. The Government are proposing that we set up another piece of administrative apparatus to control the supply of services in a quite small country. We are not abolishing a monopoly but just enlarging the monopoly so as to include certain others who are to be put through certain hoops before they qualify to render these services.
My noble and learned friend Lord Morton said that there was no support for the provision in Scotland. I wish to ask the noble and learned Lord the Lord Advocate to answer this question: what is the basis in the Scottish context for the Government's premise that there is a need to abolish the so-called conveyancing monopoly? No criticisms are made in either the Green Paper or the White Paper of the way in which solicitors perform their functions at present. I am sure that the noble and learned Lord the Lord Advocate was reminded by the Law Society of a statistic which your Lordships may have heard before. The Scottish Consumer Council made a study or survey which resulted in a finding that 87 per cent, of the public in Scotland was satisfied with the services received from solicitors in the field of conveyancing. That is a high figure in the ordinary human situation. I wish to know from the noble and learned Lord the Lord Advocate what is the basis of the proposal to make this change.
I am also amused by something which noble Lords will find on page 52 of the Bill. Paragraph 13(3) of Schedule 1 states:
"No person shall be qualified to be appointed auditor under sub-paragraph (2) above unless he is a member of…the Institute of Chartered Accountants of Scotland",
etc. The Government are here creating a new monopoly. Why should not anybody skilled in the handling of accounts, from bookmakers upwards or downwards, be able to serve the board? I do mean bookmakers, not book-keepers. They are very competent with figures and as skilled as many chartered accountants. Why should not a board be set up for them? Why should this schedule confine

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the work of auditing to members of the Institute of Chartered Accountants in Scotland? The whole proposal is a nonsense. In the discussion on the Courts and Legal Services Bill, noble Lords pointed out that if we went down that road we would wind up with unqualified pilots, unqualified brain surgeons, unqualified dentists. Here the Government are creating a monopoly in favour of members of the Institute of Chartered Accountants.
I wish to ask the noble and learned Lord the Lord Advocate one simple question: what is the basis for this provision in the Scottish context as distinct from the English context?
Lord Mackie of Benshie: I wish to ask the same question. I admit that—to use a well-known phrase—some of my best friends are lawyers. The rural areas of Scotland are those that I know best. In the rural areas as well as in the cities there is no shadow of doubt—although the noble and learned Lord, Lord Morton, was not making his case from this—that conveyancing provides a legal aid service to many people who receive the advice. They are given it for sweeties and it is of great value to them. Nobody seems to object to paying for conveyancing when it comes to a contract for a house.
The figures given by the Law Society are quite startling. In a great many rural practices, anything from 40 to 60 per cent, of the gross income arises through conveyancing fees. Without them, large numbers of firms would fold up within a short time if the bread and butter were taken from their mouths by the Bill. I too cannot see why on earth the provision has been brought forward. There is no demand for it so far as one can see. Even the Consumer Council, which would leap upon it if it were valuable, acknowledges the danger to rural practices. That is enormously important.
What are the advantages? The legislation sets up a body which will produce a narrow band of expertise when that expertise already exists in the hands of competent, able people who can guarantee that they will not swindle the public. They are prepared to pay for it if one of their members does so. I cannot see what the Government are doing. The finest thing they could do is back down once more on matters Scottish and drop this clause altogether from the Bill.
6.15 p.m.
Lord Hughes: The noble and learned Lord, Lord Morton of Shuna, referred to the Royal Commission of which I was proud to be chairman. We sat for four years and it is now 10 years since our proposals were published. A good part of our time was taken up with the subject of conveyancing. I do not think it can be argued that there was total satisfaction at that time with the solicitors' monopoly in conveyancing. The evidence which was given to us showed that there was widespread feeling on the matter but on other subjects also.
Another large part of our time was taken up with considering the way in which the Law Society carried out its work. We made many recommendations to which I referred on Second Reading as to what the Law Society should do to improve its procedures.
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At that time I said that the Law Society's record in following up the recommendations was much better than that of the Government.
In particular, we were concerned with the restrictions which the Law Society placed on its members as to the way in which they could bring services to the notice of the public; the almost total restriction on advertising; the unsatisfactory nature of some procedures about competition; and the unsatisfactory nature of procedures in discipline. In each of these fields considerable change has been made by the Law Society.
It is obviously difficult for me to say with certainty what our recommendation on conveyancing would have been if all the changes which have taken place through the Law Society in the past 10 years had taken place in the 10 years before we met. I remind the noble and learned Lord the Lord Advocate that although we recommended the breaking up of the solicitors' conveyancing monopoly in the state of play as it then was, we specifically said that we did not wish to have a new breed of conveyancer created. Apart from anything else, it would be many years before such a body could establish itself as a satisfactory alternative to other ways in which conveyancing could be carried out.
Since the Second Reading of this Bill I have re-examined our own recommendations and much of the evidence given to us. I am persuaded that the right course of action for me to take, as chairman of the Royal Commission, is to oppose the Motion that Clause 14 stand part of the Bill.
Baroness Carnegy of Lour: The two skilled politicians and two judges who spoke from the Cross-Benches made, I thought very nearly political speeches. They spoke against one of the main thrusts of the Bill. We had an extended debate on the subject at Second Reading and we do not wish to reiterate all the arguments. With the greatest of respect, I think that it is not appropriate for noble Lords to say at this point that the public does not want more choice in conveyancing. It is not crying out for the new breed of conveyancer because it does not yet appreciate that it is on the way.
Noble Lords may have become aware only last week—I think it was broadcast, although it may also have appeared in the press—that solicitors in England are about to produce a new format for conveyancing, which will be much simpler and easier to understand and much more cost-effective for their clients. That is an excellent idea. I wonder whether it would have happened if it had not been for the English Bill. Perhaps we can look forward to such an idea in Scotland.
It seems wrong to say that this major part of the Bill should not be put into effect. The noble and learned Lord, Lord McCluskey, said that the Government were not abolishing a monopoly, but were enlarging it. However the aim is to give the public more choice. I am surprised that the noble Lord, Lord Mackie, who lives in the same part of Scotland as I do, thinks that people are satisfied with the cost of conveyancing. The people whom I know in Forfar who have been buying and selling lately complain that they have been taken to the cleaners by the solicitors.
Lord Mackie of Benshie: They might think that, but they do not think it as much as they think they are being taken to the cleaners by the high interest rates.
Baroness Carnegy of Lour: Perhaps that is a discussion for another day. There is a great deal of enthusiasm for the idea that there should be competition among solicitors. I must say to the noble and learned Lords, Lord McCluskey and Lord Morton of Shuna, that the public do not want unregulated competition. They want regulated competition. They will want it even more when they see how it works. It must be regulated. It is wrong for us to sit here and say that people do not want that. It is extremely important for ordinary people in Scotland. It is wrong that it should be possible in England but not in Scotland. The advantages exist in England and are felt in the new format there. I hope that the clause will stand part of the Bill.
The Earl of Balfour: I should like to add a few words in support of my noble friend Lady Carnegy. From time to time, on an estate like mine, the rent is reviewed. I always go to a land agent to do that. I should not dream of going to a solicitor. However, I must go to a solicitor if property is bought or sold. I strongly believe that no one section of the community should ever have the sole right to carry out a particular function. There are some good land agents in Scotland. The public will always want a choice and the Bill provides that choice. It does not prevent solicitors doing the job. Far from it. They can carry on and in many cases they might turn out to be the best, but we are not restricted to solicitors alone in conveyancing.
The Earl of Selkirk: With great respect to my noble friend, there are a thousand firms in Scotland. If one cannot chose one firm from among a thousand, that represents a pretty bad choice.
Perhaps I may say this to my noble friend Lady Carnegy. If she had listened to the noble Lord, Lord Evans of Claughton, speaking from the distinctive city of Liverpool on the nature and quality of Scottish solicitors, she would not have made the speech that she did this afternoon.
Lord Coleraine: Speaking as a member of the English legal profession, perhaps I may tell my noble friend Lady Carnegy that we in England have had experience for some five years of a breed of people called licensed conveyancers. They are not lawyers. There are not many of them. They convey property. I dare say that in many cases they do it quite well. But they are not lawyers and are not able to cope with the legal problems that arise in many cases. Through their inability to cope with the law, they have the potentiality of damaging both their own clients and the other parties to conveyances. I am sure that that profession does a good job, but I should certainly not recommend the northern part of the kingdom to indulge in that kind of operation. I agree with the noble and learned Lord, Lord Morton of Shuna, that the clause should not stand part of the Bill.
Lord Gray of Contin: I can assure my noble and learned friend the Lord Advocate that I shall not vote against the clause standing part of the Bill. I accept it, however, with considerable reservation.
I do not believe that there has been any great demand for the measure in Scotland. By and large, people have not been dissatisfied with solicitors in Scotland. As my noble friend Lord Selkirk pointed out, there are a great many solicitors from whom to choose. It would be a tragedy if any one of those had to give up practising because of the Government's intention to allow building societies in particular to carry out their own conveyancing. I am not even aware that there has been any great demand for that measure from building societies in Scotland. Nevertheless, I shall allow my vote to go in favour of the clause standing part of the Bill in the hope that, as we progress through this part of the Bill, we shall be able to make improvements which would lessen the danger to solicitors, particularly in rural areas.
My noble and learned friend the Lord Advocate, in his professional capacity, will know as well as I do the valuable role which the solicitor plays in rural parts of Scotland. In the Highlands, which I know well, it is the exception to find a practice consisting of more than four or five. One has probably to go to Inverness so to do. I could name a maximum of about half a dozen there in excess of the size I have mentioned. Such firms play a vital role in the community. If any suffer unduly, there might be amalgamations; some might even close down. In some smaller towns, as much as 60 per cent, of fees accrue from conveyancing.
The Government have the best intentions for the consumer. Nevertheless I ask them to be careful that in their efforts to satisfy the consumer they do not leave the consumer worse off. If there is no independent advice from the legal profession, the consumer will be deprived. Associations are building up between estate agents. I noted with interest the boost which my noble friend gave to estate agents. He certainly came across many good ones. However, he should consider reading the article in the March edition of the consumer magazine Which? That article dealt at length with some estate agents whose practices leave much to be desired.
We do not have estate agents to the same extent in Scotland. But they are gradually developing, as are the associations which they are forming with the banks. Ultimately, if they can do their own conveyancing there will not be that degree of independent advice available, particularly when such associations range even further into insurance companies. A young couple go to buy a house. By the time they have finished, they are not sure whether the more important part is the buying of the house or the buying of a policy to help with the mortgage. Those are all very new situations which have crept in over the past decade. They are situations of which we should be aware and which we must constantly be careful to monitor.
Nevertheless, I have great confidence in my noble and learned friend the Lord Advocate and I give him every support. I hope that he will pay attention

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to what has been said in the stand-part debate on this clause. I hope that he will listen with care to the further amendments which may be moved and that we shall benefit from his wisdom in due course.
6.30 p.m.
Lord Fraser of Carmyllie: Under the law of Scotland the preparation of missives for the purchase and sale of land are not regulated at all. There is no monopoly conferred upon solicitors in that very important task. Indeed, as one looks to the development of missives in Scotland at the present time and to the simplification that there has been in recent years in conveyancing, I should have thought that many objective observers, having regard to the liabilities that might be incurred at different stages, would conclude that the preparation and concluding of missives is possibly even more important than the conveyancing itself.
If we had adopted a wholly irresponsible attitude to the issue of conveyancing in Scotland there is a very simple provision that we could have brought before the Committee, namely the removal of Section 32 of the Solicitors (Scotland) Act 1980. It would have found its place in a minor repeal schedule. That is not what we have done. We have brought forward Part II of the Bill, which sets up a scheme for the introduction in Scotland of qualified conveyancers and conveyancing practitioners.
I have given that introduction because I believe that it is important to understand what Clause 14 introduces. It introduces the Scottish Conveyancing and Confirmation Board, which will allow for the proper regulation of the provision of conveyancing and confirmation services by persons other than solicitors. If the clause is defeated that would be a signal not that conveyancing should remain with solicitors but rather curiously that the regulations—which I thought all members of the Committee considered were appropriate—should be set aside.
I am asked what the demand is in Scotland for the measure. My noble friend Lady Carnegy made a good point. In the high street of Forfar it is not the clack o' the toon. No one is asking who is this chap, the new conveyancing practitioner. They do not know. However, I believe that it would be wrong to think that young people, old people and anyone involved in conveyancing are not concerned to ensure that they get as good a deal as they possibly can, particularly at times of high interest rates.
If there is any group that I am sorry for in all of this it is the Scottish Consumer Council, which is constantly prayed in aid for fragmented pieces of advice that it has tendered to all Members of this Committee and to the Government. Doubtless I shall be corrected by the council if I am wrong, but my understanding of the matter is that it supports the extension of conveyancing services but requests firmly that there should be a proper regulation in the consumer's interest of those to whom the right to provide conveyancing services is extended. Without Clause 14 the opportunity to set up that regulation scheme is destroyed. It is the linchpin of the regulation that is considered necessary.
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It is against that background that I invite the Committee to agree that Clause 14 should stand part of the Bill. We shall come in the succeeding clauses to details of the regulation, which are undoubtedly important.
There is one matter which I readily acknowledge and which has been advocated eloquently by my noble friend Lord Gray of Contin. I should not like to see the proposed change in conveyancing bring about any permanent and irretrievable damage to solicitors in rural areas of Scotland. It is difficult to anticipate what damage, if any, would be brought about by such a change. However, one of the distinguished academic voices in the legal consumerist cause in Scotland is that of Professor Alan Patterson. He has recently prepared a paper which appeared in the Scots Law Times. Interesting as it was, from his analysis it did not seem to me that it was in any sense conclusively established that the extension of conveyancing rights to others would have the effect of bringing about the demise of solicitors in rural areas. I believe that there are other factors which are affecting solicitors in rural areas. The recruitment of bright young assistants is one. I heard that point made at the weekend at the Law Society of Scotland's conference.
If there is a difficulty in rural areas, that would seem to me to be a problem that we should deal with specifically and not by leaving the conveyancing monopoly in place. We should not deal with it by depriving people, whether they live in large towns, cities or small towns, of the freedom of choice to decide whether they wish their conveyancing work to be done by a solicitor or by a conveyancing practitioner. That is a choice which should be left to them. My particular reason for urging the Committee not to divide against Clause 14 is that, if it goes, the regulation of those practitioners is destroyed.
6.37 p.m.
On Question, Whether Clause 14, as amended, shall stand part of the Bill?
Their Lordships divided: Contents, 87; Not-Contents, 45.

Division No. 1

CONTENTS

Aldington, L.

Dacre of Glanton, L.

Allenby of Megiddo, V.

Davidson, V. [Teller.]

Allerton, L.

Denham, L. [Teller.]

Ampthill, L.

Elles, B.

Arran, E.

Elliot of Harwood, B.

Balfour, E.

Elliott of Morpeth, L.

Beloff, L.

Erroll, E.

Belstead, L.

Fortescue, E.

Blyth, L.

Fraser of Carmyllie, L.

Boardman, L.

Fraser of Kilmorack, L.

Borthwick, L.

Gardner of Parkes, B.

Boyd-Carpenter, L.

Glenarthur, L.

Brougham and Vaux, L.

Gray of Contin, L.

Caithness, E.

Grimthorpe, L.

Campbell of Croy, L.

Harmar-Nicholls, L.

Carlisle of Bucklow, L.

Henderson of Brompton, L.

Carnegy of Lour, B.

Henley, L.

Carnock, L.

Hives, L.

Colville of Culross, V.

Holderness, L.

Cox, B.

Home of the Hirsel, L.

Craigavon, V.

Hooper, B.

Crathorne, L.

Hylton-Foster, B.

797

Joseph, L.

Radnor, E.

Killearn, L.

Rankeillour, L.

Kimball, L.

Reay, L.

Kinnoull, E.

Renwick, L.

Liverpool, E.

Rochdale, V.

Long, V,

Russell of Liverpool, L.

Lucas of Chilworth, L.

Sanderson of Bowden, L.

Mackay of Clashfern, L.

Skelmersdale, L.

Margadale, L.

Stanley of Alderley, L.

Masham of Ilton, B.

Strange, B.

Merrivale, L.

Strathmore and Kinghorne, E.

Middleton, L.

Montagu of Beaulieu, L.

Swinfen, L.

Mottistone, L.

Swinton, E.

Mountevans, L.

Taylor of Gryfe, L.

Munster, E.

Thomas of Gwydir, L.

Murton of Lindisfarne, L.

Thomas of Swynnerton, L.

Nelson, E.

Trefgarne, L.

Norrie, L.

Trumpington, B.

Orkney. E.

Ullswater, V.

Pennock, L.

Vinson, L.

Pym, L

Wynford, L.

NOT-CONTENTS

Airedale, L.

Listowel, E.

Bonham-Carter, L.

Lockwood, B.

Boston of Faversham, L.

McCluskey, L.

Coleraine, L.

Mackie of Benshie, L.

Dean of Beswick, L.

Morton of Shuna, L. [Teller]

Emslie, L.

Nicol, B.

Ewart-Biggs, B.

Pitt of Hampstead, L.

Foot, L.

Rea, L.

Galpern, L.

Renton, L.

Graham of Edmonton, L.

Saltoun of Abernethy, Ly.

Grantchester, L.

Selkirk, E. [Teller.]

Greenway, L.

Shackleton, L.

Grey, E.

Shannon, E.

Grimond, L.

Simon of Glaisdale, L.

Hampton, L.

Stoddart of Swindon, L.

Hayter, L.

Thurlow, L.

Hughes, L.

Turner of Camden, B.

Hylton, L.

Underhill, L.

Jauncey of Tullichettle, L.

White, B.

Jeger, E.

Wilberforce, L.

Jenkins of Hillhead, L.

Winstanley, L.

Keith of Kinkel, L.

Young of Dartington, L.

Lawrence, L.

Resolved in the affirmative, and Clause 14, as amended, agreed to accordingly.
6.45 p.m.
The Deputy Chairman of Committees: Before I call the next amendment, I should point out to the Committee that, if this amendment is agreed to, I cannot call Amendment No. 147D.
Schedule 1 [Scottish Conveyancing and Confirmation Practitioners Board]:
[Amendments Nos. 147C and 147D not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 147E:
Page 50, line 3, at end insert:
("Part I
Constitution, Duties, Powers and Status").
On Question, amendment agreed to.
The Deputy Chairman of Committees: Before I call the next amendment, I should point out that, if this amendment is agreed to, I cannot call Amendment No. 148.
[Amendment No. 149 had been withdrawn from the Marshalled List.]
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 149A:
Page 50, line 11, after ("chairman") insert ("who shall be a solicitor or an advocate").
The noble and learned Lord said: This amendment deals with the composition of the board. It is, of course, necessary that the composition should include people who know something about conveyancing. Therefore this amendment suggests that the chairman should be a lawyer. I should point out that I am also speaking to Amendments Nos. 149B and 151.
It is necessary that this board, which will deal with conveyancing and confirmation services, should have on it those who are experienced as well, and, under Amendment No. 151, it is also necessary that there should be a reasonable and proper balance between those providing the services and those using the services. That is the purpose of Amendment No. 151 and, although it is not in my name, I wholly support the principle behind it.
Amendments Nos. 149A and 149B necessitate having lawyers on the board, whether it is a confirmation board or an executory board. However the noble and learned Lord the Lord Advocate deals with that issue, it is necessary that someone with sheriff clerk experience should be on the board to be able to deal with the confirmation issues that will no doubt arise. I beg to move.
Lord Carmichael of Kelvingrove: My name is down to this amendment and to Amendment No. 151, and I should like to associate myself with the amendment of the noble and learned Lord, Lord Morton of Shuna. This amendment is taken almost word for word from Clause 30(1)(b) of the Courts and Legal Services Bill for England and Wales, which is before Parliament. It will ensure that the Secretary of State must bear in mind the desirability of balancing the interests of conveyancing service providers and those of the consumers of those services.
The Scottish Consumer Council is concerned that the proposed composition of the board is one chairman and between six and nine other members, representing those with knowledge of expertise in conveyancing and confirmation practice, financial arrangements relating to property transactions, commercial matters and consumer affairs. This could result in the appointment of only one person with a consumer background, with the rest substantially taken from the ranks of the legal profession or those with business or commercial backgrounds. The Scottish Consumer Council believes, and I agree with it, that the consumer should have more of a say in how the conveyancing services should be provided.
I should like to have an explanation of why the Government consider it important for the legislation to require such a balance between the interests of consumers and users in England and Wales but not in Scotland. I understand that the CAB has much the same views as the Consumer Council and ourselves.
Lord Mackie of Benshie: I should like to join my name to this amendment and the one substituted for Amendment No. 150. I think that the arguments put

799
forward on both amendments are correct. Of course there should be proper consumer representation. It is also extremely important that there should be a large proportion of people expert in the law and conveyancing. The noble and learned Lord, Lord Morton of Shuna, defined who should be on the board and said that one member should have experience as a sheriff's clerk. I agree that experience and erudition should be backed by consumer representation, but both sides are valuable. Expertise is necessary.
Lord McCluskey: I also support this amendment. Perhaps I may say a few words about the Scottish Consumer Council. As I understand its attitude to many of the proposals that have come forward and are now contained in the Bill, it supports in principle the rhetoric that argues for the proposals. However, when the council considers the Bill in detail it does not like it at all. One of the details that it does not like is in relation to this board. I support its views.
However, I should like in particular to draw the Committee's attention to the present provision at page 50, line 10 of the Bill. Paragraph 3 proposes:
"The Board shall consist of—
(a) a chairman; and
(b) not less than six nor more than nine other members, appointed by the Secretary of State".
I think that "less than" should be "fewer than", but let that pass.
The provision is quite unacceptable. The Secretary of State has no need for absolute carte blanche in this matter. There are interests, including consumer interests, which ought to be represented and there ought to be some restriction placed on the ability of the Secretary of State to select whom he will. For that reason, among others, I support this amendment.
Lord Fraser of Carmyllie: The first amendment that we are discussing relates to the chairmanship of this board. While I can readily enough see that those who have legal expertise should be members of the board, I cannot see why the particular public interest essentially is discharged by limiting the Secretary of State's choice of someone to head this important new body to a serving member of the legal profession. That is not to say that that person will not be drawn from the ranks of the legal profession. However, it does not seem to me to be necessarily appropriate to have that requirement. The responsibilities and skills of a chairman would seem to me to be the compelling necessity in this case.
So far as concerns the second amendment, I confess to a degree of sympathy with it, although the details are not apt. It has always been our intention that the board should strike a proper balance between the interests of practitioners—by whom is meant both current and future practitioners—and those who use conveyancing services. As the noble Lord, Lord Carmichael, indicated, the Courts and Legal Services Bill includes a provision to secure a balance in the conveyancing board which it establishes.
However, for reasons that I have already spelt out the boards are not identical in their remits. The
800
Scottish board is much wider in terms of the services that it regulates and the range of its functions. Therefore the question of balance is much more complicated so far as concerns Scotland. It would not really be sufficient to look only at the interests of practitioners and certainly not only at conveyancing practitioners.
I draw the Committee's attention to paragraph 3 of Schedule 1, which states that there shall be a chairman and not less than six or more than nine other members appointed by the Secretary of State. Passing on to paragraph 4, it is there indicated that:
"the Secretary of State shall have regard to the desirability of securing that members of the Board have expertise or knowledge of—
(a) the provision of conveyancing and confirmation services;
(b) the financial arrangements …
(c) consumer affairs; and
(d) commercial affairs".
It seems to me that by imposing that condition upon the Secretary of State the clearest indication is given that indeed we look to have a board that is properly balanced.
Lord Renton: I wonder whether my noble and learned friend can explain a point to me. He said that the chairman is not to be a lawyer. What sort of person do the Government have in mind to have appointed as chairman?
Lord Fraser of Carmyllie: With respect to my noble friend, I did not say that he was not to be a lawyer. I merely indicated that I thought it would be inappropriate to tie the Secretary of State's hands by requiring him to select his chairman exclusively from the ranks of serving members of the profession. I certainly did not intend to indicate that the chairman would not be a lawyer. I put forward the arguments on this matter on the basis that he should be given the opportunity to select someone who would be a good chairman whether or not he is a lawyer.
Lord McCluskey: Did I understand the noble and learned Lord the Lord Advocate to say in effect that he would think a little more about this matter, or does he think that paragraph 4 on page 50 of the Bill is a sufficient answer? I am not quite sure that I understood precisely what he wanted us to take from his reply.
Lord Fraser of Carmyllie: What I wanted the noble and learned Lord to take from it is that, while I accept what he and others have said on the question of balance, I do not think that we can look absolutely to what is provided in the Courts and Legal Services Bill. When one looks at what is imposed on the Secretary of State in terms of paragraph 4, I should argue that, albeit by a different route, the balance that the noble and learned Lord wishes to achieve would be accomplished that way.
Lord Morton of Shuna: I must say I have difficulty at times in understanding the noble and learned Lord. I cannot see his objection to balancing between users and practitioners. I cannot see that there is anything in paragraphs 3 or 4 that says one solitary word about balance.

801
However, apparently we must just accept that the present holder of the office of Lord Advocate is guaranteeing that all future Secretaries of State will operate on some undefined balance. It seems highly unsatisfactory. I think that it would be appropriate to withdraw the amendment now but give notice that we may come back again at the next stage of the Bill.
Amendment, by leave, withdrawn.
[Amendment Nos. 149B and 149C not moved.]
[Amendment No. 150 had been withdrawn from the Marshalled List.]
[Amendments Nos. 151 to 152E not moved.]
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 153:
Page 52, line 40, leave out from ("fund") to ("have") in line 41 and insert ("to compensate persons who").
The noble and learned Lord said: One finds at paragraph 16 of this schedule:
"The Hoard shall establish and maintain a fund for the purpose of making grants to compensate persons who in the opinion of the Board have suffered pecuniary loss by reason of dishonesty".
First, I wish to point out that Amendment No. 154, which I shall not move because of what happened about the executry, was an addition because I do not understand why it is only the conveyancing practitioner and not the confirmation practitioner—I would have called him an executry practitioner—who may cause loss. Perhaps the noble and learned Lord will be able to deal with that point. "Grants to compensate" suggests ex gratia grants and not full compensation. There are too many words. If what is meant is full compensation, my amendment suggests leaving out the words from "fund" to "have" so that the provision reads,
"The Board shall establish and maintain a fund to compensate persons who have suffered pecuniary loss".
and so forth. I hope that that is the Government's intention. If it is not, I shall disagree with the Government. If it is, the wording that I have suggested makes matters clearer, simpler and more straightforward. I beg to move.
7 p.m.
Lord Fraser of Carmyllie: The noble and learned Lord raised the preliminary point: why were not executry practitioners or confirmation practitioners drawn into that? The issue goes back to a debate that we have already had. I do not seek to reopen it. It was understood that, given the narrow range of compensation, it was not necessary to do that. I shall come back to the matter as I indicated to the noble and learned Lord.
The provision of paragraph 16 is drafted to match as closely as possible the wording of Section 43 of the Solicitors (Scotland) Act 1980, which provides for the Law Society's guarantee fund. It would appear appropriate to keep the language in step. If there is to be any change suggested, it would seem only appropriate that the Solicitors (Scotland) Act should also be changed.
However, so far as I am aware—and I shall have some inquiries made—I am not conscious that there
802
has been any difficulty by the use of this language in the 1980 Act when claims are to be met by the guarantee fund of the Law Society of Scotland. I shall check that.
Lord Morton of Shuna: I can assure the Committee that the guarantee fund certainly makes compensation. But as a matter of English, if that is what it does, is not my wording better?
Lord Renton: No.
Lord Morton of Shuna: The noble Lord, Lord Renton, does not agree. No doubt he is much wiser than me. The wording of a provision in any Act of Parliament should be straightforward and simple, and create its meaning. If the noble and learned Lord the Lord Advocate agrees with my suggested amendment, he will have plenty of opportunities to amend the 1980 Act because he has done so at length throughout the Bill.
Lord Renton: The real point that arises here is whether or not the Government intend that there should be a right to compensation. If there is to be a right to compensation—and I should have thought that that was the justice of the matter—we should get the wording correct so that we make it clear.
Lord Morton of Shuna: I wholly agree with that. I thought that the noble Lord, Lord Renton, was disagreeing with something I said earlier. That is my view. I do not intend to press the amendment. I beg leave to withdraw it.
Amendment, by leave, withdrawn.
[Amendments Nos. 153A to 154A not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie: moved Amendment No. 154B:
Page 53, line 2, at end insert:
("Parliamentary disqualification
17. In Part II of Schedule 1 to the House of Commons Disqualification Act 1975 (bodies of which all members are disqualified) the following entry shall be inserted at the appropriate place in alphabetical order—
"The Scottish Conveyancing and Confirmation Practitioners Board".").
The noble and learned Lord said: The amendment is a technical one. Its purpose is to disqualify members of the Scottish Conveyancing and Confirmation Practitioners Board from serving as Members in another place. As members of a public body it would clearly be inappropriate for them to do so. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 154C:
Page 53, line 2, at end insert:
("PART II
Powers of Investigation
18. For the purposes of an inquiry under subsection (1) or (1A) of section 18 of this Act the Board may give notice in writing to a practitioner or a qualified conveyancer specifying the subject matter of the inquiry and requiring—
(a) the production or delivery to any person appointed by the Board, at a time and place specified in the notice, of

803
such documents so specified as are in the possession or control of the practitioner or qualified conveyancer and relate to the subject matter of the inquiry; and
(b) an explanation, within such period being not less than 21 days as the notice may specify, from the practitioner or qualified conveyancer regarding the subject matter of the inquiry.
19. If a practitioner or qualified conveyancer fails to comply with a notice under paragraph 18(a) above, the Board may apply to the Court of Session for an order requiring the practitioner or qualified conveyancer to produce or deliver the documents to the person appointed at the place specified in the notice within such time as the court may order.").
The noble and learned Lord said: I beg to move.
Lord McCluskey: On what basis is this being moved? Perhaps I missed something that was said earlier. It seems a rather long amendment to put forward without an explanation.
Lord Fraser of Carmyllie: I thought that I had spoken to it along with Amendment No. 147B.
On Question, amendment agreed to.
Schedule 1, as amended, agreed to.
[Amendment No. 155 not moved.]
Clause 15 [Conveyancing practitioners]:
The Earl of Selkirk The Earl of Selkirk: moved Amendment No. 155A:
Page 15, line 41, after ("services") insert ("and if a natural person is at least 21 years of age").
The noble Earl said: The amendment provides for a coveyancer to be over the age of 21. I simply say that anyone appointed should be over the age of 21. I beg to move.
Lord Fraser of Carmyllie: I put it to the Committee that age is not an appropriate test. It is the fit and proper test that is of importance to the general suitability of a person putting himself forward as a practitioner in this field. I appreciate that solicitors must be 21. However, their qualifications and training will take them at least five years to acquire.
Having said that, I am bound to say that I do not envisage that there will be many, if any, who will qualify under the age of 21.
The Earl of Selkirk: If the noble and learned Lord does not like it, I shall not press the amendment. I am bound to say that for anyone under the age of 21 to take the responsibility of a conveyancing or confirmation act I should have thought wholly unreasonable. It is not a job for a student at university. I ask the noble and learned Lord to think again. The amendment does no harm but it sets a limit.
Lord Fraser of Carmyllie: There is one circumstance in which a person may be under the age of 21. A qualified conveyancer may work for a conveyancing practitioner. In such circumstances it may be appropriate that he should be entitled to exercise the skills that he has acquired.
The Earl of Selkirk: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 155B:
Page 16, line 5, leave out ("a bank") and insert ("an institution").
The noble and learned Lord said: This amendment and Amendment No. 187A are technical and simply bring the terminology used in Clause 15(3) and Clause 17(4) with reference to institutions authorised by the Bank of England to operate deposit taking business into line with the Banking Act 1987. There is no policy content to them. I beg to move.
On Question, amendment agreed to.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 156:
Page 16, line 14, leave out ("may") and insert ("shall").
The noble and learned Lord said: Amendment No. 156 is the classic amendment which arises from time to time in such Bills. It proposes to leave out "may" and insert "shall". The grouping suggests that I should speak also to Amendments Nos. 156A, 162, 162A and 163. For the life of me I can see no reason why that grouping has been made.
The amendments tabled by my noble and learned friend Lord McCluskey and I leave out "may" and insert "shall" in lines 14 and 41. They ensure that regulations which are, in effect, a code of conduct shall be made and not left to the discretion of the Secretary of State to do as he thinks proper. I shall leave Amendments Nos. 156A and 162A entirely to the noble and learned Lord the Lord Advocate.
Amendment No. 163 adds the provision that consultations should be with the Law Society of Scotland. It is obvious that the rules dealing with complaints and the manner in which conveyancing services are carried out should have some relationship to the way in which those services are carried out by solicitors. Therefore, there should be consultation between the Secretary of State, who is the regulating body for the board, and the Law Society which, under the supervision of the Lord President, is the regulating body for solicitors. I beg to move.
Lord McCluskey: I support the amendment which is also tabled in my name. In Amendment No. 156A the Lord Advocate is prepared to accept that "may" shall be replaced by "shall". His amendment goes on to deal with the new clause relating to the Director General of Fair Trading. No doubt we shall have an opportunity to make observations about that. Therefore, I reserve my position.
No doubt the noble and learned Lord the Lord Advocate will also wish to take into account the associated Amendments Nos. 157 and 158. They are in the next grouping but, as the list states, it is open to any Peer to speak to any amendment in its place and maybe I shall. Replacing "may" with "shall" does only part of the job. One must go on and leave out the words "as he considers appropriate". If one says that he shall do whatever he considers appropriate one is saying that he may do it or he may not. He may consider it appropriate to do nothing. Accordingly, it is not appropriate to use the word "appropriate".
Lord Fraser of Carmyllie: I appreciate the difficulty experienced by both noble and learned Lords in seeing the immediate relationship between the two amendments tabled in my name and theirs. However, the group has correctly been identified. In Amendment No. 156A I propose that wherever "may" appears it should be deleted and replaced by "shall". The amendment is more elaborate because it goes on to include consultation with the Director General of Fair Trading. Members of the Committee will be aware of elaborate provisions concerned with the director. However, this is not an appropriate point to deal with them as wider comment may be sought to be made. I can assure the noble and learned Lord that the provisions in his amendment are dealt with in mine.
As regards Amendment No. 159, I am not prepared to accept "shall" in that context. I wish to leave the word "may". However, I accept the proposal in Amendment No. 162 because it is subsumed in my Amendment No. 162A. I cannot accept Amendment No. 167.
Lord Renton: It may be that I have not been sufficiently thorough. I have looked for the new clause relating to the advisory and supervisory functions of the director. It is not grouped with these amendments. It would help to know where to find it.
The Earl of Balfour: It is Amendment No. 178C.
Lord Fraser of Carmyllie: That is correct. There are also new clauses after Clause 29 proposed in Amendments Nos. 275F, 275G and 275H.
7.15 p.m.
Lord Grimond: I understand that the noble and learned Lord is not prepared to accept "shall" instead of "may" in line 14. Does that mean that he intends to leave it open for the Secretary of State to make or not make regulations; or does he consider that the regulations are in any way compulsory on the Secretary of State? If his intention is to give the option to the Secretary of State can he explain why that is necessary?
Lord Fraser of Carmyllie: I am saying exactly the opposite. In line 14 I am prepared to see the introduction of "shall" rather than "may".
Lord McCluskey: I experienced the same difficulty as the noble Lord, Lord Renton. It is extremely difficult to follow the amendments because they have been tabled so late and they are so substantial. As a result, huge sections of Part II of the Bill have been rewritten. Today we meet as a Committee when we have the opportunity to speak more than once, ask questions and seek to obtain a reply. However, in due course the Bill will be reported to the House with certain amendments, including these massive new amendments, which we shall be able to discuss only in a more limited way. I regret that, but no doubt there is no easy solution to the problem at this stage.
Can the Lord Advocate explain to the Committee how it is that a Bill, which was introduced on 16th
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December last year and received its Second Reading on 30th January, is now being rewritten root and branch in respect of many important matters? We have yet to deal with other matters, including a new third version of Clause 21 which appears in the list of amendments. It is extremely difficult for Members, especially at this time of day and at our age, to follow all the complications that have been put before us at a late stage.
Lord Renton: A great deal of new material, such as the lengthy new clauses, fails to have the advantage of an explanatory memorandum. On a printed Bill as sometimes brought from the Commons to your Lordships' House we have the benefit of the explanatory memorandum. Therefore, it is all the more important that we should obtain the fullest possible explanation from the Government. I am surprised that Amendment No. 156A was not grouped with Amendment No. 275H. Our attention would have been drawn to the issue and, under our rules, we should not have been prevented from discussing Amendment No. 275H separately as it arose. We should have been helped by having the forward reference.
Lord Morton of Shuna: The noble and learned Lord the Lord Advocate was kind enough to supply some Members of the Committee, including my noble and learned friends Lord McCluskey and Lord Emslie and myself, with Notes on Clauses. They become utterly confusing when you take away the clauses. It does not tell you where you are going at all. It seems to me that what has happened, perhaps with the best will in the world, is that the noble and learned Lord the Lord Advocate, by introducing these new clauses at this late stage, has prevented normal Committee stage discussions on them from taking place because on Report there will be no opportunity for the same sort of discussion. If he had come forward with these clauses on Report we might have persuaded his noble friend to allow for recommitment of the clauses, if necessary. However, this is a method of denying discussion to its full extent.
Lord Fraser of Carmyllie: I began by offering an apology to noble and learned Lords who had tabled amendments and I repeat that now. I appreciate that it is difficult to follow what has happened as regards the deletion of "may" and the insertion of "shall", which I consider to be appropriate. However, I hope to try to get the discussion back on the right lines by leaving out any consideration of the role of the Director General of Fair Trading at this stage, although there are a large number of amendments to be considered. I hope that we can deal with them comprehensively. While they are extended, the presence of the Director General of Fair Trading is already in a number of clauses. I do not intend to introduce a new principle here involving him. It is merely to expand and clarify what will be his role. I could have introduced those matters on Report but I have no doubt that the noble and learned Lord would have argued even more powerfully that that was an inappropriate stage at which to introduce them.
The Earl of Balfour: Before we leave the point, in this grouping was Amendment No. 163 in the name of the noble and learned Lord, Lord Morton of Shuna. It aims to insert:
"and the Law Society of Scotland".
I felt that that was an interesting point. I hope that my noble and learned friend will deal with it.
Lord Morton of Shuna: To answer for what I did, I spoke to Amendment No. 163 because it was in the grouping. I said that the Law Society of Scotland should be consulted because it was the other body with an interest in the standards of conveyancing. I do not believe that I received a reply on that issue from the noble and learned Lord the Lord Advocate.
Lord McCluskey: I am sorry that the discussion in relation to this amendment has gone off the rails and that that is my responsibility. However, there is an important point which I picked up from what the noble Lord, Lord Renton, said. The new clauses which appear on pages 46, 47 and 48 on the Second Marshalled List are extremely important. I notice from the suggested groupings that the noble and learned Lord does not intend to address himself to those this evening. It would certainly be helpful to me and would meet some of my concerns if the Lord Advocate could find an opportunity to explain the matter so that it is on the record. We can then read what he says between now and Thursday when we shall discuss those amendments. The noble and learned Lord has offered generous apologies which I happily accept.
Lord Fraser of Carmyllie: That was my intention, although I do not anticipate that we shall reach the amendments this evening. Because of the reference to them in earlier clauses, I hope that we can have a broader discussion on them and if there are points to be raised, there will be a further opportunity to do that on the next Committee day on the Bill.
Amendment, by leave, withdrawn.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 156A:
Page 16, line 14, leave out ("may, after consultation with the Director General of Fair Trading") and insert ("shall, subject to section [Advisory and supervisory functions of the Director] of this Act").
On Question, amendment agreed to.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 157:
Page 16, line 15, leave out ("such") and insert ("appropriate").
The noble and learned Lord said: To a certain extent this amendment has been discussed by my noble and learned friend Lord McCluskey, although it is not in his name. As he stated, the purpose of the amendment is to tidy up and strengthen subsection (5) of this clause so that it links up with the transfer of "may" to "shall". I shall also speak to Amendments Nos. 158, 159 and 164 to 167.
The noble and learned Lord the Lord Advocate indicated that he would not accept Amendment No. 159, which seems to me absurd. The Bill now reads that the Secretary of State "shall", subject to the
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subsection about the director, make such provisions as he considers appropriate. What is the point of that if it does not include suitable procedures for dealing with complaints and so on? It is utterly illogical for the word "may" on line 18 not to be "shall". It must be "shall" if the clause is to have any content at all. Those are very important phrases and I strongly urge the noble and learned Lord to reconsider his position on this. It is essential that we have those regulations and that they cover those points.
The same position arises as regards Amendments Nos. 164 to 167. It appears at line 44: provision "may" be made in respect of the manner in which the business is conducted, the supervision, conflicts of interest and the contractual obligations. It is essential that we have those regulations, that there are standards and that there is, in effect, a code of conduct. This will not do. I am sure that that is not what the noble and learned Lord means. I beg to move.
Lord Renton: Perhaps the noble and learned Lord could explain one matter. It seems to me as a mere English lawyer who is not very familiar with the workings of the Scottish courts that the joint effect of Amendments Nos. 157 and 158 would enable judicial review to take place, whereas if we do not accept those amendments that judicial review would be out of place because the matter would turn on what the Secretary of State considers appropriate.
Lord Morton of Shuna: I agree entirely with the noble Lord. This seems to have been drafted to avoid judicial review, which I think is a mistake.
Lord Macaulay of Bragar: I support the noble and learned Lord, Lord Morton, on the use of the words "may" and "shall". It seems to me that if the Government are bent on introducing this new legal animal into the Scottish conveyancing and confirmation services, there should be a compulsion as regards the procedures contained in the amendment. Otherwise, before it comes into operation the public will not know the standards to be applied in terms of the paragraphs.
7.30 p.m.
Baroness Carnegy of Lour: It is very confusing because the grouping deals with various aspects of the Bill. I should particularly like to support Amendment No. 167. I have tabled amendments for this part of the Bill, in which I take a particular interest.
On Second Reading I said that it was absolutely essential to be clear that the Secretary of State "shall" make regulations regarding the code of conduct which will maintain appropriate standards of conduct and practice of conveyancing practitioners. I should therefore like to support the amendment. I shall not attempt to enter into the other discussions because I am too confused.
Lord McCluskey: I sympathise with the noble and learned Lord the Lord Advocate on this matter. He accepted an important principle in moving

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Amendment No. 156A. Having listened to the debate he will have an opportunity to reflect on what is said about the other instances of "may" and "shall".
My sympathy derives from the fact that in the past week or so we showered upon the Committee and upon the Lord Advocate an enormous number of amendments. It must have been as difficult for him to come to terms with ours as it was for us to come to terms with his. I am sure that when he looks again at the various instances of the words "may" and "shall"—a point taken by the noble Baroness and one which applies forcibly to Amendment No. 162—he may find that to give effect to the principle throughout this clause he will have to substitute "shall" for "may" more often than he is presently inclined to do.
Lord Fraser of Carmyllie: If I recollect the discussion on this point at Second Reading, I was only asked to move from "may" to "shall", as I have done. I am not entirely sure as things stand that if I do not move in the direction requested of me it will wholly exclude all the judicial review. I should like to reflect on that matter. I am not convinced that that is absolutely so but I undertake to look at it again. It is certainly the intention of the Secretary of State that there should be regulations made under subsections (5) and (9). By introducing "shall" I hope that I signalled that clearly. If I have to semaphore more clearly, I shall do what I can.
Lord Renton: Is the intention of the Secretary of State also that there shall be judicial review or that judicial review shall be excluded?
Lord Fraser of Carmyllie: The noble Lord offered the opinion that unless I accepted the amendment tabled, judicial review would be excluded. I am bound to say that I am not totally persuaded that that would happen. I indicated that that is a matter on which I should like to reflect.
Lord Morton of Shuna: Surely the question of the noble Lord, Lord Renton, was not whether the drafting actually did or did not exclude judicial review but whether the Secretary of State and the Lord Advocate meant it to exclude judicial review. Presumably the Lord Advocate knows what he meant to do, whether or not he is satisfied that he did it. Can he say whether he meant to exclude judicial review?
Lord Fraser of Carmyllie: I indicated that I would consider this point.
Lord Morton of Shuna: I suppose that that means that the Lord Advocate did not know what he meant to do. In those circumstances and in the hope that he will know by Report stage, I ask leave to withdraw Amendment No. 157.
Amendment, by leave, withdrawn.
[Amendments Nos. 158 and 159 not moved.]
The Earl of Balfour The Earl of Balfour moved Amendment No. 160:
Page 16, line 30, leave out ("and").
The noble Earl said: Under Clause 15(6) the board cannot both grant an application and refuse such an application. I therefore suggest that the word "and" is left out. Amendment No. 188 should be taken with Amendment No. 160 because exactly the same words appear in Clause 17(5). I beg to move.
Lord Fraser of Carmyllie: I am vastly impressed by the manner in which the noble Earl, Lord Balfour, examines the details of this Bill. It is an extremely helpful drafting suggestion which may clarify the intentions of the provisions and I am therefore happy to accept it.
On Question, amendment agreed to.
The Earl of Strathmore and Kinghorne: I beg to move that the House do now resume. In moving the Motion I suggest that the Committee stage begins again at 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Transport (Amendment) (Northern Ireland) Order 1990
7.35 p.m.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Skelmersdale): rose to move, That the draft order laid before the House on 13th March be approved.
The noble Lord said: My Lords, this is the first Motion standing in my name on the Order Paper. It introduces amendments broadly in line with provisions already put into effect in Great Britain by amending the base legislation, the Transport Act (Northern Ireland) 1967. It is essentially a miscellaneous provisions order which, if the House will bear with me, requires a little more explanation than usual.
At present in Northern Ireland any vehicle which is used to carry passengers is regarded as a public service vehicle if any charge is made for the carriage. In consequence any organisation which provides a transport service on a non-profit-making basis cannot charge for that service unless the vehicle is registered as a public service vehicle. Such registration results in higher insurance premiums and the need to employ drivers who hold a public service vehicle driver's licence.
These requirements were relaxed in Great Britain by Sections 18 to 21 of the Transport Act 1985. These sections provide that small and large passenger carrying vehicles would not be regarded as public service vehicles when carrying passengers for hire and reward under specified circumstances. Those circumstances are when it is used by a voluntary organisation for the carriage of its own members and to the exclusion of the public at large. The provision gave useful assistance to many voluntary and community organisations and has been well received.

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In Northern Ireland there has been pressure from many interested parties for similar relaxations to apply. Article 3 would meet that demand by relaxing the public service vehicle licensing requirements for such vehicles used under permits.
Article 4 replaces the existing Section 57(2) of the 1967 Act. The article provides that a person who contravenes a railway by-law shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale. Should an offence continue, the article provides for a further fine not exceeding £10 for each day on which the offence continues after conviction.
Trespass on the railway is considered to be a serious offence and is one which has led to a number of fatal accidents. The articles therefore increases the penalty under Section 65(1) of the Act of 1967 for trespass on the railway to level 3 on the standard scale. Northern Ireland Railways has made many prosecutions in recent years for trespassing and it is hoped that this higher level of penalty will act as a deterrent to would-be trespassers.
The provisions of Article 5 seek further to strengthen the law against the offence of fare evasion. Such evasion has been a problem for some years for Citybus, which provides bus services in the Belfast area. Under present legislation a driver who reasonably suspects any passenger of fare evasion may ask the passenger to leave the vehicle or to give his name and address. Surprisingly, if a suspected offender refuses to give his or her name and address there is no power for the bus employee to detain the suspect.
However, under the Police and Criminal Evidence (Northern Ireland) Order 1989 a police constable has a power of arrest in circumstances where a name and address are not given. The problem remains of what action is available in those cases where a suspected offender does identify him or herself. At present they can only be asked to leave the bus or they may be considered for prosecution. Experience of the companies in such prosecutions is that the cost and effort involved are not matched by the penalty imposed on the offender. The penalty fare provisions would impose a monetary "punishment" and be easier to operate than a prosecution-based scheme. The penalty fare scheme proposed is based on a similar scheme recently enacted for British Rail.
While fare evasion is primarily a problem for bus operators, it occurs on a smaller scale on Northern Ireland Railways. Therefore, the option to adopt penalty fares is being made available to NIR as well as bus operators. The amount of the penalty fare on both buses and trains would be an amount equal to the full single fare for the journey the person has made plus £5. It is payable within 21 days to the operator.
The other main provision of the order would give statutory backing for grants which have been paid on an extra statutory basis to assist the Northern Ireland Council on Disability. Article 6 would enable the department to make, subject to specified terms and conditions, grants to any body towards expenditure incurred on providing, maintaining or improving transport facilities for the disabled.
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Articles 7 and 8 introduce, respectively, Schedules 2 and 3 which set out minor and consequential amendments to the Act of 1967, the Road Traffic (Northern Ireland) Order 1981 and consequential repeals of certain parts of the Act of 1967. I beg to move.
Moved, That the draft order laid before the House on 13th March be approved. —(Lord Skelmersdale).
7.45 p.m.
Lord Prys-Davies: My Lords, we are grateful to the noble Lord for introducing this long overdue order. I am sure that all of us share its principal objectives, except that Article 5 will not be agreeable to trespassers and Article 7 will not be agreeable to fare dodgers, as they will have less comfortable and more expensive journeys in future.
We agree that Article 3 will be of considerable value to many voluntary and charitable organisations and their members, provided of course that they keep their buses in a fit and serviceable condition. Likewise, Article 6 will benefit many disabled members of the public. I am sure that this order will therefore command the support of all sides of the House.
There are just two matters which concern me. First, will the Minister please explain why a permit cannot be issued for a large bus, as defined in this order, belonging to an organisation which is primarily concerned with recreation, while a permit can be issued to such an organisation for the use of a small bus? Why is the size of the bus so significant? I shall be interested to hear the Minister's reply.
Secondly, will the Minister please tell the House on what grounds a permit granted under Article 3 can be revoked? Why is it that the grounds of revocation are not set out in the order? I find it strange that the order, particularly the proposed Section 10C(5), does not specify the grounds for revocation. Unless I missed it, it would seem that a permit can be revoked at the unfettered discretion of a civil servant.
The point is important because the revocation is not appealable. Bearing in mind the discussions in this House over the past few months, it would seem that Section 10C(5) would have been attractive to Henry VIII. However, this is 1990 and revocation of a permit without giving the grounds and without the revocation being appealable is possibly carrying things just a little too far. Again, I shall be interested to hear the Minister's reply.
I am sorry to say that that brings me back to an old issue. Section 10C(5), notwithstanding its poor quality, leaves this House untouched and unamended. Of course the noble Lord, Lord Skelmersdale, cannot commit the department or give any undertakings on behalf of the department, but if one's reading of the order is correct, it would be extremely helpful if the department could make clear to permit holders when they receive a permit the circumstances in which the permit could be revoked. It would also be helpful if the department published its reasons for revocation.

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While I very much approve of this order and, indeed, am heartened by some of its articles, it would be appreciated if the Minister could reflect on the two issues I have raised.
Lord Skelmersdale: My Lords, I am grateful to the noble Lord. I agree that this is a long overdue amendment to the road traffic legislation in Northern Ireland. The noble Lord said that Article 5 would not be agreeable to trespassers and Article 6 would not be agreeable to fare dodgers. I do not think that anyone in your Lordships' House would want to be agreeable to those two classes of person.
The noble Lord's major interest and complaint was on the subject of permits. It might be of assistance to him if I explain that the department will issue permits where it is satisfied that there are adequate facilities or arrangements for maintaining in a fit and serviceable condition any bus used under the permit. The department may also by order made subject to negative resolution designate bodies; for example, the Boy's Brigade, scouting associations, disabled associations and so on.
The noble Lord queried the size of bus. The department has given much thought to this aspect and considers that the use of small buses will adequately meet the needs of recreational bodies. That is confirmed by the experience so far in Great Britain, but if it is necessary to reconsider the position I am sure that that will be done on both sides of the water.
The noble Lord complained about the new Section IOC in Article 3. He described it as legislation suitable for the time of Henry VIII. He made the valid point that we have moved on since then, and I agree with him. Permits would be revoked depending of course on the circumstances of the case. He will observe that there is a caveat which I believe is particularly applicable to officials in the Department of the Environment in Northern Ireland; that is, subsection (5)(b):
"in the case of a permit granted by a body designated under section 10B(6), after consultation with that body".
Therefore, on that point honour is satisfied. I hope that I have been able to answer some of the questions raised by the noble Lord and I therefore commend the order to the House.
Lord Prys-Davies: My Lords, I shall not press the matter further, but it would have been of assistance to have made clear on the face of the order the circumstances in which the department can revoke a permit. If the department will reflect on that point, I am content.
Lord Skelmersdale: My Lords, of course I give the undermaking that the department will reflect on that point. My experience of Northern Ireland does not yet allow me to say how regularly these transport miscellaneous provisions orders arise but, as I said, I undertake that the department will reflect on the point made.
On Question, Motion agreed to.

Industrial Training (Northern Ireland) Order 1990
7.50 p.m.
Lord Skelmersdale Lord Skelmersdale rose to move, That the draft order laid before the House on 14th March be approved.
The noble Lord said: My Lords, the House will agree that it is of crucial importance, if Northern Ireland is to win and sustain a place in today's ever more competitive world, that it capitalises on the resourcefulness, adaptability and skills of its people. There is increasing evidence to suggest that, whereas Northern Ireland has invested heavily in what we might call the "hardware" to increase competitiveness—that is, the capital plant and equipment—noticeably less investment has been made in the competence of the workforce at both shopfloor and managerial level. Without a competent workforce, however, the Province cannot hope to match increasingly sophisticated competitors who are giving training the highest priority.
Though Northern Ireland possesses a substantial education and training resource which includes grammar and secondary schools, 26 colleges of further education, two universities, 12 training colleges, eight industrial training boards, the Northern Ireland Training Authority, a youth training programme and, for adults, the job training programme, and a range of grants aimed at encouraging training within companies, the system has simply not delivered the goods. It has not been as effective as it needs to be to match our competitors.
The fragmented system of training arrangements involving 10 statutory training authorities—that is, the eight industrial training boards, NITA and the Department of Economic Development—has led to a system lacking in cohesion, co-ordination and leadership. In short, we have a system without the kudos and credibility to ensure effective action. Because of its cumbersome nature the system has been slow to grasp and take up new opportunities and there has been considerable doubt, reinforced by research carried out by the Department of Economic Development about the effectiveness of industrial training board levies in funding worthwhile training.
Hence, the need for this order is a consequence of the Government's decision to establish a single statutory new employment and training organisation within the Department of Economic Development, which will be known as the Training and Employment Agency. This Next Steps agency will embrace the training functions of the Department of Economic Development, the industrial training boards, and the Northern Ireland Training Authority. I am happy to say that, when the proposal for the draft order was published, the responses were generally supportive. As a result of further discussion, it was decided to include the Employment Service in the new organisation in recognition of its important role in the administration of services and as a source of information at local level throughout the Province.
Further details of the proposed arrangements were published by the department in March 1989 in the position paper Training and Employment Services in Northern Ireland. Both these documents were made widely available by the department.
I would only add that powers to create the new body are already on this statute book by virtue of the Employment and Training Act (Northern Ireland) 1950. The need for this order is occasioned by the decision to wind up the organisations I have mentioned and to transfer their functions to the new body. I believe that the individual articles and schedule are self-explanatory, though I am beginning to doubt my powers of perception after the last debate between the noble Lord, Lord Prys-Davies, and myself. I beg to move.
Moved, that the draft order laid before the House on 14th March be approved.—(Lord Skelmersdale.)
Lord Prys-Davies: My Lords, I again thank the noble Lord, Lord Skelmersdale, for his explanation of this fairly technical but nevertheless important order. From the inquiries which I have made from trade unionists in Northern Ireland, it seems that there may be mixed feelings about the value of this order though it is fair to say that, on balance, they give it a cautious welcome.
Some trade unionists fear that it may be a decisive step towards the deregulation of the industrial training boards. Others are gratified, to put it at its mildest, that the order has not gone further along the road of privatisation of the eight industrial boards. There is complete agreement among trade unionists in Northern Ireland on one point—that there has been inadequate consultation with the relevant trade unions.
I understand that an impression has been given by the department, which came to be widely believed, that this was the way in which matters were to go and that the department had made up its mind. The changes had to be carried out. If that is a correct impression, that obviously is not consultation. I read somewhere that the Permanent Secretary has apologised to the Northern Ireland Public Service Alliance for failing to consult prior to the issue of the outline staffing structure. One can give many other examples of a lack of consultation. We say from these Benches that the department should consult as much as possible when changes involving people are in train.
I now turn to the order. There are five questions, or possibly a group of questions, that I wish to ask the Minister. I apologise to him for not having given him notice of these questions as I should have done. I had not completed my researches until this morning. First, I shall be interested to learn whether all the staff currently employed by the Northern Ireland Training Authority and the eight training boards have the right to be transferred to the Northern Ireland Civil Service. Thereafter, have they the right to be transferred and to apply for posts within the Civil Service? Will this right be available at a later stage to those four boards which are not now being dissolved but which may be wound up in the future? That point should be cleared up.
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In passing. I mention that it is a cause of some concern that so many employees of the boards are opting for redundancy and not opting to be transferred to the Northern Ireland Civil Service. Obviously that may deprive the service of valuable skills and experience.
Secondly, can the Minister tell the House how the work now carried out by the Northern Ireland Training Authority and the four industrial boards will be undertaken within the department? Will there be a separate agency within the department? If that is so, will it have separate funds? Will it be publishing annual reports which can be scrutinised by the public? What will be the rank of its chief executive? Can the Minister also say to whom he will be accountable?
Thirdly, I turn to a matter which may have some constitutional significance. I understand that the Minister for the economy has already appointed the members of the advisory committee. He has appointed the chairman and determined the salaries. I understand that an announcement may be made within the course of the next few days. I ask the Minister on what authority his colleague has made these appointments. Is the Northern Ireland Office in a position to place in the Library a copy of the constitution and functions of the advisory committee? If it is not, then surely this committee cannot possibly function. Would it not be inappropriate to make appointments and to determine its chairman and the salaries?
Fourthly, I understand that the Minister has appointed 12 members of the advisory committee, though I doubt the validity of those appointments. Of the 12 members, only two are trade union representatives compared with five from business and industry. Would it not have been advisable to have parity of representation so that the disussions between the two social partners are not dominated by one side?
Fifthly, is the noble Lord able to indicate to the House what part of the £112 million coming from the EC during the period 1989 to 1993 will be made available for industrial training in Northern Ireland?I should ackowledge the fact that it was my noble friend Lord Blease who reminded me earlier in the day of this funding. If I may return to an old and very familiar issue, will the EC funding be treated as additional to Exchequer resources?
I have no more questions for the Minister. After 11 years of a Conservative Government it is still the sad case that Northern Ireland suffers severely from skill shortages. We have referred to this issue when discussing a number of appropriation orders. It must be our hope that this order will greatly improve industrial training for young people in the Province, that it will be of benefit to all those who require training and that it will benefit and strengthen the basis of the Northern Ireland economy. We want the order to be a success.
8 p.m.
Lord Skelmersdale: My Lords, I am grateful to the noble Lord. I assure him that no apology for not giving me prior warning of his questions is necessary.

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It would, however, be fair to warn him that I may have to write to him on this occasion with the answers to one or two of his questions.
I tried to express earlier that with the establishment of the agency we shall have one statutory training organisation which will provide clear leadership and a co-ordinated approach to training and employment in Northern Ireland, something which the noble Lord agrees is necessary. The department considers that the continuation of other statutory bodies would dilute this role and perpetuate the fragmented approach about which I spoke earlier.
I should like straightaway to comment on the possibility of training being privatised. Although the noble Lord did not put it in so many words, I suspect that is what he wants to know about. Privatisation is not the major issue. My honourable friend is seeking to find the most effective and efficient way of ensuring that training needs are indeed met. He believes, however, that the private sector can continue to play an important role and therefore most certainly does not rule out privatisation where that is sensible. But it is not an objective.
The noble Lord asked about staff. The staff of the current training organisation and those training boards which have announced their intention to dissolve will have a clear choice between applying for voluntary redundancy and transferring into the training and employment agency. Since the terms attaching to either option have been clearly spelt out, it is unnecessary to make specific provision in the order regarding the terms and conditions of service in the agency for transferred staff over and above the existing statutory safeguards.
Lord Prys-Davies: My Lords, what is the position of staff employed by training boards who have not at this stage opted for transfer to the department but may in future opt for their functions to be transferred to the department? Will the staff employed by those training boards be eligible for transfer to the Northern Ireland Civil Service?
Lord Skelmersdale: My Lords, if the noble Lord would be prepared to contain his soul in patience for just a little longer, I think that in my rather roundabout way I shall be able to address that point. I was talking about the staff. Approximately 1,700 staff will be in the new agency. I can give the noble Lord liter, if I may be allowed to, a list of those organisations from which they are emanating.
On transfers to the department, the former authority and training board staff will become civil servants and will be employed under the normal Northern Ireland Civil Service terms and conditions of service. Where necessary, transitional arrangements will be offered. I am not sure whether I have told the noble Lord that the staff of the old training organisation and the six industrial training boards have been or will be offered a choice of either a job with the agency at current terms and conditions or voluntary redundancy. The remaining two boards—the construction board and the road transport board—will be reviewed in two years' time.
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The noble Lord asked about the constitution of the new agency. This is contained in a framework document which will be published. The noble Lord was interested in the chairman and members of the board, announced by my honourable friend yesterday. The best thing I can do is give the noble Lord the list. If he prefers, I can arrange for it to be published in the Official Report.
The noble Lord was concerned that this may be an unusual way to behave. It is not unusual to have a board in waiting, as it were.
Lord Prys-Davies: A shadow board, my Lords.
Lord Skelmersdale: My Lords, I am grateful to the noble Lord. I do not believe that my honourable friend has conducted himself in any way improperly in that regard.
The noble Lord will not be surprised to hear that any European funding which we attract for this purpose or indeed any other will be treated under current procedures for handling European Community money.
Baroness White: My Lords, can the noble Lord make this perfectly clear? Did I understand him to say that this will be treated with the usual parsimony of the Treasury as additionality?
Lord Skelmersdale: Yes, my Lords. I regret to say that that is the answer.
The noble Lord asked about the constitution of the board. The advisory board is established under Section 1 of the Employment and Training Act 1950, to which I referred earlier. No constitution order has been made as this is optional under the Act, which of course is being amended by this order.
To sum up, I hope that the House will share my enthusiasm for and commitment to training in Northern Ireland. The noble Lord quite clearly does. I believe that through its close links with industry, through its advisory board and through its work with a number of sectoral representative groups which will determine training standards for industry and generally represent its needs, we can create a strong partnership between the Province's education and training providers and industry, and in so doing make a more constructive use of what are major and costly resources. In short, we wish to create a prestigious organisation which can attract the enthusiastic support of the Province's industry.
The Government consider that this agency can make an important and long-lasting improvement to the benefit of the economy of the Province. I cannot emphasise too strongly the importance of ensuring that the skills of the population are developed and utilised to the fullest extent so that we can maximise our ability to compete in the dynamically changing Europe of the 1990s.
I shall study Hansard very carefully because it is quite likely that I failed to answer one or more of the noble Lord's questions. As he is poised to intervene, which I should be delighted for him to do, perhaps he will indicate at that moment whether he would like the list to be published in the Official Report.
Lord Prys-Davies: My Lords, I am grateful to the Minister for responding to most of the questions I raised. However, he has not indicated or explained why we should only have two trade union representatives on the board whereas there are five representatives from industry. Perhaps he can explain the reason for this formula?
Lord Skelmersdale: My Lords, the purpose of the board is to be responsible for advising the Minister and the agency's chief executive who, incidentally, will be answerable to the Minister, on the formulation and implementation of training and employment policy and for seeking increased collaboration between employers and the agency. I believe that that is the real reason for there being a preponderance of employer representatives on the board as opposed to trade union representatives.
As I understand it, the representatives have not been chosen—and I shall write to the noble Lord on this point if I am wrong—on the basis of what they represent. They have been chosen for what they can offer. I am advised that the agency's board will comprise a maximum of 12 members who will be appointed according to their expertise and general ability to contribute to the work of the agency. Therefore, there is no ulterior motive in the breakdown which—dare I say—the noble Lord implied in his intervention.
I return now to my pleasure in being able to introduce this order to the House. I believe that the training and employment agency will achieve far more than the existing procedural arrangements for the training needs of Northern Ireland in a very competitive world.
Lord Blease: My Lords, if I heard the noble Lord correctly, in replying to the noble Baroness, Lady White, in relation to additionality he said that he regretted to say—though I think he meant to say that he regretted to mention—that additionality was the answer. Perhaps he will read the Hansard report of the proceedings to see whether I am correct.
Lord Skelmersdale: My Lords, I may well have said what the noble Lord, Lord Blease, has just suggested. However, I was responding to the noble Baroness in terms in which I suspect she was thinking that there was no intended criticism in my statement of my right honourable friend the Chancellor of the Exchequer and his colleagues.
Baroness White: My Lords, that is regrettable because the whole exercise in additionality is something about which some of us fail to agree.
Lord Skelmersdale: My Lords, indeed that may be so. I have had some years' experience of exchanging views both in public and in private with the noble Baroness, Lady White.
On Question, Motion agreed to.
Viscount Long: My Lords, I beg to move that the House do now adjourn during pleasure until 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.12 to 8.35 p.m.]

Law Reform (Miscellaneous Provisions) (Scotland) Bill: [H.L.]
House again in Committee on Clause 15.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie: moved Amendment No. 160A:
Page 16, line 40, at end insert:
("(8A) Where a conveyancing practitioner applies to the Board to remove its name from the register, the Board shall, if they are satisfied that the practitioner has made adequate arrangements with respect to the business it then has in hand, grant the application and amend the register accordingly.").
The noble and learned Lord said: These amendments make provision for conveyancing practitioners, confirmation practitioners and qualified conveyancers voluntarily to surrender their registration when they no longer wish to offer the services in question. They remedy a deficiency in the Bill as drafted in that there are no means by which a practitioner can have his name removed from the register without committing some offence and having such registration revoked. These amendments therefore provide for any practitioner to have his name removed from the relevant register by making a simple application to the board.
In the case of conveyancing and confirmation practitioners, who, unlike qualified conveyancers, will be offering services directly to the public, the amendments further require the board to satisfy itself that suitable arrangements have been made regarding any work outstanding at the time that the practitioner seeks to leave the register. It will not therefore be possible for practitioners to abdicate their professional responsibilities to their clients simply by seeking the removal of their names from the register. I beg to move.
Lord Morton of Shuna: I: believe that the noble and learned Lord intended to speak to Amendments Nos. 160A, 178G and 188A. It is interesting that there is no provision in these amendments for the board to examine whether there is a complaint outstanding or whether there is any potential complaint. As the noble and learned Lord will no doubt be aware, there has been a method by which solicitors have avoided the discipline tribunal by having their name removed from the list. It seems that it would be appropriate—because that is an unfortunate occurrence—that there should be some measure in the clause that if there is a complaint or a potential complaint the board shall have some method of dealing with it.
In the amendment put forward there does not appear to be any such suggestion. For all I can see, if a conveyancing practitioner or a conveyancer should suddenly decide to go off with £200,000, as

821
long as he first takes the step of asking to be taken off the list, nobody can do anything about it. That must be wrong. I hope that the noble and learned Lord will at least consider whether there should not be some measure taken to deal with that potential difficulty.
Lord Fraser of Carmyllie: That is certainly not the intention. 1 introduced the amendments for the very purpose of ensuring as best we can that those who provide services cannot evade their responsibilities by revocation. I shall look at the matter again. I had hoped that, where reference was made to the fact that there were adequate arrangements in respect of the business, that would be sufficiently wide to cover the matter, but I shall look at it.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie: moved Amendment No. 160B:
Page 16, line 40, at end insert:
("(8 8) The Board shall send to the Keeper of the Registers of Scotland—
(a) as soon as practicable after 1st April in each year, a list of all conveyancing practitioners; and
(b) written notice of any subsequent change to the register of conveyancing practitioners.").
The noble and learned Lord said: In moving this amendment, I shall speak also to Amendment No. 180A. These are technical amendments which have been crafted after detailed consultation with the Department of Registers of Scotland. Their purpose is to enable the keeper to verify the credentials of a qualified conveyancer who has signed a warrant or application for registration of a deed.
The second amendment requires the qualified conveyancer, when signing a warrant, to specify the name of the conveyancing practitioner or the solicitor who employs him or, where a qualified conveyancer practises as a conveyancing practitioner on his own account, his designation as such. New subsection (8B) in Clause 15 places the board under a duty to supply the keeper with a list of all conveyancing practitioners so that he may make the necessary connections to undertake that verification. I beg to move.
Lord Morton of Shuna: The amendment provides for intimation to the Keeper of the Registers, or whoever else may be interested, of when someone comes on or off the list. That is to be done only once a year, but surely it must be done every time someone comes on or off the list.
Lord Fraser of Carmyllie: As I indicated, we are anxious to ensure that the keeper is able to verify credentials. There are comparable provisions in respect of solicitors. There must also be provisions for conveyancing practitioners. Again, I shall ensure that that point is covered.
Lord Morton of Shuna: I am sure that the noble and learned Lord realises that the solicitor has a document called a practising certificate. There is no provision, until we come to a later amendment in my name, that provides for a practising certificate for these people. Without such a practising certificate,
822
there is no measure to deal with the problem of people who come on and leave, unless they do so on or about 1st April. The matter should be looked at carefully.
Lord Fraser of Carmyllie: Provision for written notice of a subsequent change to the register is contained in Amendment No. 160B.
On Question, amendment agreed to.
The Deputy Chairman of Committees (Lord Hayter): I must tell the Committee that, if Amendment No. 161 is agreed to, I cannot call Amendments Nos. 162 to 167 inclusive.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 161:
Page 16, leave out from beginning of line 41 to ("in") in line 44 and insert:
("(9) The Board shall, after consultation with interested bodies and the Director General of Fair Trading, by rules make such provision as it thinks fit with a view to maintaining appropriate standards of conduct and practice of conveyancing practitioners. The Secretary of State shall promulgate regulations incorporating these rules, and such rules shall,").
The noble Lord said: This amendment relates to the regulations to be made under Clause 15(9). It is an important area because it is the area that we mentioned earlier which will satisfy the public that the standards to be maintained by the practitioners will be the highest possible.
This is a probing amendment. I hope that Members of the Committee will notice that basically it inverts responsibility for promulgating those regulations The board will have the power after consultation with interested bodies—that will cover the question of consultation with, among others, the Law Society—and the Director General of Fair Trading to
"by rules make such provision as it thinks fit with a view to maintaining appropriate standards of conduct … The Secretary of State shall promulgage regulations incorporating these rules".
The amendment seeks to give the board power to decide what the rules shall be and places an onus on the Secretary of State to publish the regulations once they have been agreed by the board. I appreciate that it is a rather unusual state of affairs, but it is basically the idea of the Scottish Consumer Council and the citizens advice bureaux, which believe, as we have already mentioned, that that would give a greater public input into the rules of conduct. This is a probing amendment to see whether the principle is accepted by the Government. I beg to move.
8.45 p.m.
Lord Fraser of Carmyllie: This amendment places the duty to make regulations about the conduct and practice of the board on the board itself rather than on the Secretary of State. That would mean that the first draft of the code, before it went out to consultation, would be prepared by the board and not by the Secretary of State. If that was all the amendment did, there might be little harm in it, but it also excludes the Secretary of State from the task of specifying what is to be included in the code. That would create difficulties with regard to the public interest.

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Having said that, there is nothing in the amendment which cannot be encompassed within the provisions as drafted. We have already amended Clause 15(9) to make clear that the Secretary of State will consult about regulations before he makes them and it might be that the board would be charged with preparing the first draft on behalf of the Secretary of State for Scotland. I should like to make it clear that, if that is not the case, the board would be consulted. Having said that, I firmly believe that direct responsibility should rest, as originally provided, with the Secretary of State.
Lord Mackie of Benshie: On this occasion I agree with the noble and learned Lord the Lord Advocate. He would have been able to hide behind the provisions and say that it was not his responsibility, whereas now we can get at him directly, which is much better.
Lord Macaulay of Bragar: I: am grateful to the noble and learned Lord the Lord Advocate for the explanation of the Government's position, which is precisely as I anticipated it might be. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 162 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 162A:
Page 16, line 41, leave out ("may, after consultation with the Director General of Fair Trading") and insert ("shall, subject to section (Advisory and supervisory functions of the Director) of this Act and after consultation with such persons as he considers appropriate").
The noble and learned Lord said: This amendment was discussed in an earlier grouping. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 163 to 167 not moved.]
Baroness Carnegy of Lour Baroness Carnegy of Lour: moved Amendment No. 168:
Page 16, line 47, after ("services") insert:
(", including the requirement that conveyancing practitioners must offer prospective conveyancing clients an interview with a solicitor at a location convenient to such clients, review any possible conflict of interest, and explain the nature of the service being provided.").
The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 171, which is grouped with it.
I cannot speak for other noble Lords who have been kind enough to add their names in support of my amendment, nor for noble and learned Lords who have tabled the separate and similar Amendments Nos. 169 and 170. For my part, however, this amendment and those with it are at this stage exploratory. They are designed to bring out the Government's view on the details that they envisage for the code of conduct which will regulate conveyancing practitioners.
At Second Reading I expressed concern that although Clause 9 lists conflict of interest as one of the areas to be included in the code, the possibility of conflict of interest between conveyancers acting
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on behalf of both seller and buyer is not precluded by the Bill. There is nothing in the Bill that states that one or more conveyancers who may also be providing linked mortgages and insurances should not act for both seller and buyer. Those matters are of great concern to the Scottish Consumer Council and the Citizens Advice Bureaux of Scotland, which back the amendment and subsequent amendments on the subject also standing in my name.
The White Paper of 1989 indicated that the code of conduct would include the requirement that the conveyancing practitioner should provide his or her client with an interview with a solicitor to clarify the precise nature of the service being offered by the practitioner and to explain any conflicts of interest that arise. Because the contents of the code are not on the face of the Bill that requirement is not there either. Therefore I should like to ask my noble and learned friend whether he can assure the Committee that it will be there when the code is published.
Can he also amplify exactly what the intention is? Will the code stipulate at what stage in the proceedings the interview must be offered? Will the code preclude clients from having to travel impossibly long distances in order to take up the offer? Will conveyancing practitioners be allowed to charge an extra fee for the interview?
The Scottish Consumer Council takes the view, with which I agree, that if an interview is to be offered it will not be much use unless it takes place at the outset, early in the procedure, before the client agrees to proceed with the services offered by the practitioner. The interview must be near at hand and the cost must be included in the overall price charged. The amendment would add those provisions to the Bill.
In so far as concerns Amendment No. 171, it seems to me—and I am backed here by the Scottish Consumer Council—that it is very important that conveyancing practitioners should not be allowed to carry our conveyancing for purchaser and seller on the same transaction. The consumer council points out that the arrangements under the Bill could give rise to serious conflicts of interest. For example, when there is only one branch of a building society in a county town it is likely that the seller and several potential buyers may go there for advice. If the firm provides it they may also seek help with obtaining mortgages and taking out insurance policies related to the deal.
It is not possible to act fairly for both sides. The dangers and implications would be explained at the outset to the client if he had an interview with an independent solicitor. However, as the Bill stands it is not possible for that danger to be ruled out. There is another amendment concerning the interview. I should like to ask my noble and learned friend whether, either by adopting the amendments or clarifying subsection (9)(c), he could amplify those points. I await his reply with great interest. I beg to move.
The Deputy Chairman of Committees: Amendments Nos.168 and 170 appear to be alternatives and presumably will be debated together.
Lord Mackie of Benshie: I am delighted to be able to agree wholly with my noble neighbour Lady Carnegy on this occasion. Something will have to be produced on the lines of the various amendments. The so-called practitioner will not be a top-level fellow. He will certainly not work on his own. He will work in a back room, employed by an estate agent, a bank, a building society or some other body. His services provide a perfect subject for the slick package operation which will be advertised. The bemused client dependent on the organisation for his mortgage and his insurance is not likely to ask questions and is the perfect target for such sales talk.
Therefore, as the noble Baroness said, such a provision, which was provided for in the White Paper, is necessary if genuine protection is to be afforded to the consumer.
Lord Morton of Shuna: The difference between Amendments Nos. 168 and 169 is a matter of semantics. I have no doubt that the noble Baroness, Lady Carnegy, will agree with me that in any amendment which the Government may be minded to accept the drafting is wrong in any event and should be changed. I do not believe that there is any dispute between us. If either amendment is accepted or neither is accepted but the principle is accepted, that would suit me. The same issue arises in connection with Amendments Nos. 170 and 171. Incidentally, in the second line of Amendment No. 170 the second "purchaser" should read "purchasers".
If I am trying to sell a house and the building society, bank or solicitor is also acting for the potential purchaser or purchasers, if I say that I want £x and I am offered £x minus £1,000 it is very difficult: for the conveyancer to give impartial advice when both sides are his clients or a variety of clients are competing for the property. If I state that I want £x, how is the adviser to convince me that he is giving impartial advice when he is also acting for the potential purchaser? If I am a potential purchaser and he acts for other potential purchasers and the seller, how do I know that he is being totally impartial? That is an issue which has to be faced both by the Law Society and by the conveyancing practitioners.
I appreciate that in certain cases—for example, where one person by agreement sells property to somebody else who may be a relative at a price that they have fixed between them—it is quite proper for somebody to act to carry that agreement through. However, it seems to me that both the Law Society's provisions and the lack of provisions in the Bill for conveyancing practitioners need to be dealt with firmly. I hope that the Government will accept one of the amendments—either Amendment No. 169 or No. 168, and either Amendment No. 170 or No. 171. At the very least I hope that they will accept the principle behind them and come forward with their own amendments.
9 p.m.
Lord Boardman: I am somewhat hesitant about entering into what is essentially a Scottish debate,
826
but I claim to be 50 per cent, a Scot, which perhaps gives me some right to comment on this important amendment.
The amendment opens up two fundamental principles, the question of a conflict of interest and also the extent and the quality of the advice given to people buying a house—the most important financial transaction they will carry out in their lives. Those two matters, which this amendment opens up, cause me considerable concern.
We are likely to be faced as a result of the Bill with combines of a building society or a bank which also act as an estate agency and an insurance broker and carry out conveyancing services. Those who after seeing a property in an estate agent's window, go in and make an offer are likely to be told that they can have a full one-packet service. The prospect of having conveyancing, insurance brokerage—the whole lot—done by one firm will seem attractive to those who do not have wider experience.
I ask: what is the capacity of the conveyancing practitioner, who is often part of the combine, to give disinterested, independent advice? Will the person who sees the customer or even the solicitor, under the amendment, say to the customer client, "Of course, if you come here you will have to have an endowment policy with the XY insurance company and the terms are these." Will he then go on to say, "If you like to go across the road, where there is a free, independent insurance agent, you will get quotations which may be much better"?
Will the employee of the combine, whether he is a solicitor, as required by the amendment, or an employee with no legal qualifications (or only a bare minimum of qualifications) bear in mind where his pay cheque comes from and where his pension lies? Will he turn away that customer and say, "You will do better across the road"? I doubt it very much.
Secondly, there is the quality of the advice. When a person is buying a house the conveyancing transaction might be relatively simple. But there is also the possiblity that it will be complicated. It is 25 years since I had anything to do with practising as a solicitor; so I am very out of date. But conveyancing is only a small part of the whole matter. The person giving the advice must surely ask, "Have you thought about the tax complications? What about the house being in the joint names of yourself and your wife? What about the question of who will die first?" There are all those matters which extend far beyond the scope of someone authorised as a conveyancer under the Bill.
I ask whether, if the Bill goes through as it is, we shall be providing the customer with the quality of advice and the extent of advice that he is entitled to expect and that he would receive if he went to an independent solicitor. I contrast the different duties owed. A solicitor's primary duty is to his client: he has a fiduciary duty to that client. Banks, building societies and estate agents, all hightly reputable and no doubt acting honestly in every way, do not have that fiduciary duty. Their job is to promote their own commercial interests, honestly and properly. But that is very different from exercising the fiduciary duty which is bound to be exercised by a solicitor.

827
I wonder whether this amendment, which I support, goes nearly far enough to meet the points I have made. The whole trend of government has been for greater consumer protection. We spent weeks in this House discussing the Financial Services Bill, as it then was, to provide greater financial protection, greater consumer protection, polarisation, Chinese walls and so on, to keep apart the conflicting interests which might arise. Whether it does is another matter. Ignoring all that, this element of the Bill, despite the amendment which I support, does not go nearly far enough to give the consumer the protection that someone is entitled to in carrying out the most important financial transaction in his life.
Lord McCluskey: It is slightly unfortunate that Amendments Nos. 168, 169, 170 and 171 are all taken together, because there are two slightly different points. I support what has been said and will not add to it in relation to Amendments Nos. 168 and 169 on independent advice. In relation to Amendments Nos. 170 and 171, prohibition of acting for both sides, the principle of the level playing field requires that a rule of this kind which applies to a conveyancing practitioner applies equally to a solicitor.
The Law Society of Scotland has to face up to the problem that at the moment its rules permit in very limited circumstances that the same firm of solicitors may act for parties on both sides of the same transaction. There is an important difference in one sense. For the most part, solicitors have clients and stay with them through thick and thin over the years. One would not expect conveyancing practitioners always to have clients in the same sense. So there may be a difference there. But this is a problem that has to be thought about, not just by the Government but also by the Law Society of Scotland.
I am sure that there exists somewhere the possibility of a compromise whereby, in very limited circumstances, a practitioner or a solicitor is allowed to act for both parties in a transaction provided that it is made abundantly plain to both clients that that is exactly what is happening and that both accept it. I can envisage circumstances in which I should be perfectly happy that my solicitors or my building society should act both for me and for somebody else. I hope that we shall get away from the notion of prohibitions and think rather in terms of restrictions. And let us have good will on all sides in framing those restrictions.
Lord Grimond: A speech made in favour of these amendments, the principle of which I agree with, raises a question in my mind which is possibly more appropriate to the proposers of the amendments than to the Government. Who is to choose the solicitor? As has been said, there are many areas in Scotland where solicitors are difficult to come by. When this Bill has gone through they may be reduced still further. It may then be quite difficult to find a man who is totally independent. At any rate, it should be made plain that it must not be left to the conveyancer to find a solicitor. Whether that means that we shall have to have a panel of solicitors or whether it is considered that the client is capable of choosing his own solicitor seems to be a matter that requires further thought.
828
I emphasise that clearly, if the solicitor is to be genuinely independent, he must be free from not only any interest but even the appearance of interest. I know from experience that one of the difficulties in small towns in Scotland is to find lawyers who, even though they may be totally reputable and disinterested, nevertheless arouse a suspicion in many people's minds that they are in some way involved already in the transaction with one side or the other. Therefore I believe that when we pass these amendments, as I hope we do, we have some way of ensuring that the solicitors are genuinely independent.
Lord Morton of Shuna: There is obviously a difficulty in that, if a conveyancing practitioner has to offer an interview with a solicitor, he has to choose a solicitor who is willing to take on the job of giving one-off interviews to people and explaining this whole matter to them. The question of independence will be very difficult if in practice the building society, bank or other conveyancing practitioner has to choose a solicitor who will himself say that he is willing. He should be independent and I expect that in normal circumstances he would be. However, it is very difficult to see how adding "independent" would work. Would it mean that the client had to choose a solicitor and the conveyancing practitioner had to pay whatever fee the solicitor might choose to charge?
If I may say so, there are firms of solicitors which charge various rates for an hour's time. If a client chose a solicitor who was very expensive, would the conveyancing practitioner be able to say, "No, you cannot have him; you can only have somebody who charges half that sum"? It is a little difficult to see. I agree totally with the argument.
With regard to the business of prohibitions, personally I should pray for a prohibition with exceptions rather than a restriction. But that is perhaps another matter of semantics.
Lord Renton: I have listened to this very interesting discussion and what worries me a little is the lack of qualification of the word "solicitor" in both amendments, Amendments Nos. 168 and 169. It seems to me that it would be quite in order for the conveyancing practitioner to obtain his own solicitor, a tame solicitor or the building society's solicitor, and ask him to advise. If that happens it would comply with the requirement of the amendment. Therefore I suggest that perhaps this amendment needs a little more consideration between now and Report stage. It needs to be amplified a little.
Having said that, I feel bound to point out that, if I have understood correctly, either Amendment No. 168 or Amendment No. 169 is a necessary prelude to what is proposed in Amendment No. 170 or Amendment No. 171 and that the crux of the matter is to have one of those two amendments on the statute book. If that is done, perhaps at Report stage we can get the necessary preliminaries sought out.
Lord Fraser of Carmyllie: I have no difficulty in accepting that the matters which these amendments

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seek to import into the statutory code of conduct for conveyancing practitioners are indeed important features of our proposed scheme. The draft conveyancing code, which was set out in the Secretary of State's consultation paper The legal profession in Scotland and the further suggestions made in his Statement The Scottish legal profession—the way forward, dealt in terms with all the points.
However, I cannot accept that it is desirable to include such detail in the list of items which will guide the Secretary of State in framing the regulations. I believe that the various suggestions can readily be accommodated within the list of items that we already have.
The conflict of interest point is clear enough. The requirement to offer an interview with prospective clients would be part of Clause 15(9)(a):
"the manner in which conveyancing practitioners conduct the provision of conveyancing services".
As I have already indicated, the conflict of interest point would embrace specific prohibitions on acting for specific combinations of parties whose interests conflict.
The intervention by the noble and learned Lords, Lord McCluskey and Lord Morton, underlined the reasoning behind the desire to see this point in a code made by regulations rather than included on the face of the Bill. The noble and learned Lord appeared to be urging vigorously that the Law Society of Scotland improve its provisions over conflict of interest. That may not fall entirely on deaf ears. However, it would seem appropriate in such circumstances that both regulations that affect conveyancing practitioners and solicitors should be at least similar, if not identical, in terms.
Let me assure the Committee that the matters referred to in these amendments will all feature in appropriate terms in the regulations that will in due course be issued for consultation. While I may be in a slightly more helpful mood over some other amendments on the provisions of this subsection, I am concerned that provisions on conflict of interest, as set up, should not be too restrictive, which might achieve exactly the opposite effect from what is desired. Indeed, the more items that are suggested, the less scope there may be for a measured reflection of what is really important.
Perhaps I may answer my noble friend Lady Carnegy by saying that the interview will be required to explain the scope of the service before instructions are accepted. That is what is proposed. The interview will be near the property being conveyed, the place of work or the home of the client. It is not difficult to see why one has to have such a range. Someone working in Edinburgh may wish to buy a house in Inverness because of a change in job. Those alterntives, and such detail, have to be considered very carefully before they are set out in a finalised form.
I appreciate that the approach that I have suggested has not found complete favour with such bodies as the Scottish Consumer Council. However, I believe that it is the right way forward, in particular
830
since I have indicated that, if we set up a board which has on it those who represent consumer interests, those representatives should have the opportunity to be consulted and to comment on any code of conduct. It should not be fixed in primary legislation, with very little opportunity to amend it.
The assurances that I have given are not vague. They are meant to be taken quite clearly and firmly. With that in mind, I hope that the Committee will agree that these amendments should not be pressed.
9.15 p.m.
Lord Macaulay of Bragar: Before the noble and learned Lord sits down, perhaps he will answer the question of the noble Baroness, Lady Carnegy, about costs. Who will bear the cost of the interview? Will it be borne by the purchaser or the seller? I am not clear.
Lord Carmyllie: I apologise to the noble Lord and to the noble Baroness. That interview would be free.
Lord Morton of Shuna: I am sorry, but there is no such thing in general as free interviews with lawyers. Someone will pay. Who will pick up the Bill? It will either be the seller or the purchaser, or both, or other potential purchasers of sellers. The one thing that will not happen is that this independent solicitor will not be paid. He will be paid by somebody, presumably the conveyancing practitioner. Who can the conveyancing practioner pass the cost on to? If the Government have the idea that independent solicitors will give myriads of interviews for nothing, they may be under a misapprehension.
Baroness Carnegy of Lour: My question was this: will the cost of the interview be included in the charge that the practitioner makes in advance? I understand my noble friend to say that that is the case.
I thank Members of the Committee who have supported these amendments. A number of important aspects have been brought out. My noble friend Lord Boardman said that the amendments open up the question of quality of advice under the Bill. He spoke on a very broad front—rather broader than I had undertaken. However, he made it clear that the combinations of functions of the firms for which the conveyancers work makes the problem rather complex. He compared that position with the fiduciary duty of the solicitor to the client.
I was very encouraged to hear the noble and learned Lord, Lord McCluskey, say that he feels that the matter is one that the Law Society of Scotland will have to consider. The Committee will have seen that my Amendment No. 177 deals with that matter.
The noble Lord, Lord Grimond, spoke of the problem of finding lawyers or conveyancers in remote areas. One appreciates that that is a problem. However, that does not make the protection of the client any less important. Therefore ways forward have to be found.
The noble and learned Lord, Lord Morton, spoke of the difficulty of finding an independent solicitor to give the independent advice. I could not help smiling because we have been told so much about

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the ability of solicitors to be independent in all circumstances. I believe that solicitors are human and that in certain circumstances it would be extremely difficult for a solicitor to be independent. I accept that there are problems, as was reflected by my noble friend Lord Renton.
I am grateful to my noble and learned friend for his clear reply: he answered all my questions. Clearly the Government do not want to have that amount of detail on the face of the Bill. I shall consult the Consumers' Association and ask whether it is satisfied with the reply. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna had given notice of his intention to move Amendment No. 169:
Page 16, line 47, at end insert ("including a requirement that conveyancing practitioners must offer each prospective conveyancing client an interview with a solicitor at a place convenient to that client, at which any possible conflict of interest will be reviewed and the scope of the service being provided explained.").
The noble and learned Lord said: Although I shall not move the amendment, there is a good deal to be said for putting something on the face of the Bill. The difficulty about regulations is that the government of the day may put forward any kind of assurance that provisions will be made in regulations but this House and the other place have no opportunity to discuss or amend them in any detail. If the regulations do not meet the issue, that will not do. I hope that the noble and learned Lord will consider putting something on the face of the Bill to show the type of regulations that we may face. However, I shall not move the amendment.
[Amendment No. 169 not moved.]
[Amendments Nos. 170 and 171 not moved.]
Baroness Carnegy of Lour Baroness Carnegy of Lour moved Amendment No. 172:
Page 17, line 6, at end insert:
("(f) the disclosure of and accounting for commissions.").
The noble Baroness said: Some Members of the Committees will have had the same kind of personal experience as I. When a professional adviser undertakes to obtain quotations and arrange an insurance policy, for example, on one's behalf, one asks that professional what the charge will be for doing so. The reply is, "It will not cost you much because part of the cost will be met by the commission"; or, "There will be no charge because the cost will be covered by the commission". In those circumstances there is no way of knowing how much that professional person will receive in commission or what the charge would be if there were no commission.
That unsatisfactory situation, which occurs in circumstances other than conveyancing, may become a considerable problem under the Bill. I understand that solicitors, whether acting as conveyancers or not, are required by the Law Society of Scotland to inform their clients of any commission that will accrue to them. It is essential that the code of conduct for conveyancing practitioners should require the same of them.
However, the Scottish Consumer Council, backed by the citizens' advice bureaux, takes the view that all service providers should be obliged to disclose in writing full details of any advantages that might arise from any proposed transaction and what, if any, allowance will be made for that in determining the fee charged to the client. That would mean that, if a conveyancing practitioner receives a commission for arranging a mortgage, for example, it would be disclosed to the client before he decides whether to accept the policy. If the practitioner's overall fee is to be reduced, the client should be told that also.
During the Committee stage of the English Courts and Legal Services Bill a similar amendment was moved by the noble Lord, Lord Mishcon. That was carried by your Lordships by 31 votes to 30. I do not know whether the Government intend to leave that Bill as it now stands. However, on reflection I feel that it is very important for Scotland to ensure that the disclosure of and accounting for commissions becomes a clear requirement for all conveyancers in Scotland, England and Wales. I believe that the Law Society supports the amendment. I shall listen with interest to what my noble and learned friend says. I beg to move.
Lord Fraser of Carmyllie: If it will help us to make progress, in view of the arguments advanced by my noble friend Lady Carnegy, I propose to accept the amendment.
Baroness Carnegy of Lour: I thank my noble and learned friend. That is absolutely magnificent.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 172A:
Page 17, line 6, at end insert:
("(9A) The Board shall make such arrangements as are necessary to ensure the satisfactory completion of any work in hand when the registration of a conveyancing practitioner is suspended or revoked or the practitioner ceases, for whatever reason, to provide conveyancing services.").
The noble and learned Lord said: These amendments are to ensure that clients of conveyancing and confirmation practitioners receive no less a protection against any unforeseeable disadvantage at the hands of a practitioner than would be the case with a solicitor. The amendments enable the board to take the necessary steps to ensure that clients are not left in the lurch if the conveyancing or confirmation practitioner ceases to practice as such, whether that is as a result of disciplinary measures or other unforeseen circumstances. The power mirrors a similar one accorded to the Council of the Law Society in relation to solicitors who cease to practice at very short notice.
Given the wide range of circumstances in which a confirmation or conveyancing practitioner may be forced to abandon practice as such, the power is fairly widely drawn. However, the board will be concerned to exercise it in the best interests of clients. I beg to move.
Lord Morton of Shuna: This is fine as far as it goes. However, if the particular solicitor carrying out the work, whatever it is, runs away with the money to a country with which we have no extradition agreement, the client is totally safe as regards his money and everything else. That is not provided for here. I have said this before. There should be an arrangement to cover that sort of issue.
If the noble and learned Lord can assure the Committee that that will be done, so be it. However, there is no power which prevents a confirmation practitioner from getting confirmation to a large estate, cashing it in and disappearing to a country from which he cannot be extradited.
Lord Renton: Of course one agrees with the aim of the amendment but I am rather puzzled as to how it is to be carried out. Presumably the board itself will not have solicitors or staff to complete the unfinished work. The board will have no compulsion over any other solicitor. Earlier this evening we heard that there are parts of Scotland—and I am conscious of this—where there are not many solicitors—or conveyancers, for that matter—available. It would very much help if my noble and learned friend the Lord Advocate could tell us how these arrangements will be carried out and, indeed, enforced.
The Earl of Balfour: My noble and learned friend should have said, although he did not do so, that this amendment is grouped with Amendment No. 193B, which raises a similar point.
Lord Fraser of Carmyllie: If I neglected to do so, that is correct. It is so grouped. These provisions are very similar to equivalent provisions in the Solicitors (Scotland) Act 1980 although they may be more succinct. However, it is envisaged that it would be open to be the board to nominate another practitioner to take over the affairs of the practitioner who has ceased to practise.
Lord Morton of Shuna: What about the point I raised about the defaulting practitioner who goes off with the money?
Lord Fraser of Carmyllie: I believe that that point was answered at an earlier stage.
Lord Renton: When my noble and learned friend says "nominate another solicitor", does that mean that it is compulsory for the other solicitor—who may be the only one available for miles around—to do this? Is there some convention of the profession or requirement of law of which I am ignorant which requires the nominated solicitor to complete the job?
Lord Fraser of Carmyllie: We are not dealing with the solicitor. We are dealing with the conveyancing practitioner.
On Question, amendment agreed to.
9.30 p.m.
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove: moved Amendment No. 173:
Page 17, line 6, at end insert:
("(9A) The Board may make rules in relation to other matters relating to the maintenance of appropriate standards of conduct and practice of conveyancing practitioners, after consultation as provided in subsection (9) above, as it thinks fit.").
The noble Lord said: For brevity I point out that the Scottish Consumer Council is concerned that the standards of practitioners should be maintained and therefore that there should be scope within the Bill for the continual maintenance of appropriate standards of conduct. The amendment gives the Secretary of State flexibility to ask that that be done. I beg to move.
Lord Fraser of Carmyllie: This amendment places a duty to make regulations regarding conduct and practice on the board itself rather than the Secretary of State. That was essentially dealt with when we dealt with Amendment No. 161, if I am not mistaken.
Lord Carmichael of Kelvingrove: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 174:
Page 17, line 23, at end insert ("and to imprisonment for a period not exceeding one month").
The noble and learned Lord said: Amendments Nos. 174, 175, 181 and 198 are an endeavour—no doubt wrong and no doubt without the proper drafting—to put the penalties for failure on the conveyancing practitioner and the conveyancer on the same level as the penalties on the solicitor. That is the purpose of Amendment No. 174.
Amendment No. 175 deals with the corporate situation. Amendment No. 181 deals with the same situation in the next clause. Amendment No. 198 again deals with the corporate situation. It is a straightforward level playing field type of situation—that the same penalty for the same offence be imposed. I beg to move.
The Earl of Balfour: Perhaps I may also raise a question. Subsection (12) of Clause 15 states:
"any person who … wilfully and falsely … pretends to be a conveyancing practitioner … shall be guilty of an offence".
My concern is that due to the pretence the unfortunate client may have parted with a lot of money. I can find nothing within the legislation that provides for the unfortunate client to receive compensation from this rogue, for want of a better word. Perhaps my noble and learned friend the Lord Advocate will be good enough to consider that point.
Lord Fraser of Carmyllie: The Committee will be aware that there is a guarantee fund which is to be set up in terms of paragraph 16 of Schedule 1. We dealt with parts of this earlier. It would allow for compensation to those who suffer pecuniary loss through dishonesty and so on. However, it would be

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difficult to impose on the board a duty to make compensation where someone falsely holds himself out to be a conveyancing practitioner when he is nothing of the sort but simply a con man. In those circumstances I fear that there is no immediately obvious answer to the issue of compensation.
I do not underestimate the harmful effect which could be caused by someone acting as a conveyancing or confirmation practitioner when not qualified to do so either because they have not been registered or during a period of suspension; but it would not be appropriate to impose a period of imprisonment on someone guilty of such an offence. The Bill already provides for a fine of up to £1,000. I believe that that is a sufficient deterrent to anyone who has in mind misleading the public into believing that they were such a practitioner.
The noble and learned Lord, Lord Morton, may have been looking at Sections 31 and 63 of the Solicitors Act 1983 when preparing the amendment. Those sections envisage the possibility of imprisonment. However, I do not consider that a period of imprisonment is relevant to the offence we are debating. I hope the noble and learned Lord is therefore prepared to withdraw his amendment.
Lord Morton of Shuna: Can the noble and learned Lord explain why a licensed conveyancer who is unqualified, so to speak, is free from the risk of imprisonment but someone pretending to be a solicitor doing exactly the same thing is liable to be imprisoned? To my simple mind the level playing field would be to say that the same offence attracts the same penalty.
The noble and learned Lord the Lord Advocate has not advanced one reason for his view. He merely asserts that the penalty should be different in each case. If he can give me a reason I shall be delighted. I do not want to send anyone to prison but unfortunately sometimes people have to go to prison. Perhaps the noble and learned Lord can give a reason apart from the mere assertion.
Lord Macaulay of Bragar: Surely the offence—
Lord Fraser of Carmyllie: Perhaps I can get on with the business. The provision in—
Lord Morton of Shuna: I am trying to get on with the business. I have not intervened previously. I strongly resent being accused, by implication, of delaying business. In moving amendments I probably have been shorter than any other noble Lord. I strongly resent any suggestion from the noble and learned Lord that I am trying to delay the business. I certainly am not.
Lord Macaulay of Bragar: I support the noble and learned Lord, Lord Morton of Shuna, on this amendment. Surely the offence in subsection (12) goes to the very heart of the relationship of trust between the client and the practitioner. Anyone who wilfully and falsely pretends to be a conveyancing practitioner and harms a client certainly, I believe, deserves a penalty more than a fine on the standard
836
scale. We should make clear in the context of the Bill that people who misbehave will go to prison in appropriate cases.
Lord Morton of Shuna: In view of the silence and lack of explanation I regret that I must ask the opinion of the Committee.
9.34 p.m.
On Question, Whether the said Amendment (No. 174) shall be agreed to?
Their Lordships divided: Contents, 22; Not-Contents, 38.

DIVISION NO. 2

CONTENTS

Airedale, L.

Hatch of Lusby, L.

Blease, L.

Hylton, L.

Boston of Faversham, L.

Macaulay of Bragar, L.

Carmichael of Kelvingrove, L.

McCluskey, L.

Mackie of Benshie, L.

Cocks of Hartcliffe, L.

Morton of Shuna, L. [Teller.]

David, B.

Pitt of Hampstead, L.

Emslie, L.

Ponsonby of Shulbrede, L.

Gallacher, L. [Teller.]

Saltoun of Abernethy, Ly.

Greenway, L.

Selkirk, E.

Grey, E.

White, B.

Grimond, L.

NOT-CONTENTS

Allerton, L.

Henley, L.

Ampthill, L.

Hesketh, L.

Arran, E.

Hives, L.

Balfour, E.

Hooper, B.

Belstead, L.

Long, V. [Teller.]

Blatch, B.

Radnor, E.

Blyth, L.

Rankeillour, L.

Borthwick, L.

Reay, L.

Campbell of Croy, L.

Rees, L.

Carlisle of Bucklow, L.

Rochdale, V.

Carnegy of Lour, B.

Sanderson of Bowden, L.

Carnock, L.

Skelmersdale, L.

Craigmyle, L.

Strathmore and Kinghorne, E.

Davidson, V. [Teller.]

Elliot of Harwood, B.

Thomas of Gwydir, L.

Elliott of Morpeth, L.

Trumpington, B.

Ferrers, E.

Ullswater, V.

Fraser of Carmyllie, L.

Vinson, L.

Glenarthur, L.

Wynford, L.

Gray of Contin, L.

Resolved in the negative, and amendment disagreed to accordingly.
9.46 p.m.
[Amendment No. 175 not moved.]
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 176:
Page 17, leave out line 28.
The noble and learned Lord said: The purpose of the amendment is to make it clear that a solicitor doing conveyancing work remains under the control of the solicitors' disciplinary provisions and not of those of the conveyancing board. It is necessary that one or other and not both should cover the position. I beg to move.
Lord Fraser of Carmyllie: The broad objective underlying all parts of the Bill is to remove unnecessary constraints. We have been discussing how in future conveyancing services will be provided

837
by conveyancing practitioners under the direction of the board as an addition to the services already provided by solicitors. It is not, however, our wish that there should be any restriction on solicitors providing conveyancing services as conveyancing practitioners under the regulation of the board. They might also continue in a separate capacity as solicitors. They might even provide conveyancing services as such.
For the protection of clients it is likely that the Secretary of State will include in the code of conduct that conveyancing practitioners who are also solicitors acting as such should give a clear identification to clients of the capacity in which they are offering their services. I should make it clear that the board will only regulate the provision of conveyancing services by conveyancing practitioners and not by solicitors. Similarly, the Law Society will not regulate conveyancing practitioners. The provision in Clause 15(13) is one which I should like to think will never be invoked. I cannot think that the Law Society will have anything to gain by imposing restrictions on its members of the kind to which this provision refers.
Lord Morton of Shuna: The noble and learned Lord has a great ability not to see the point, if I may say so. I give the example of a lady going in to buy her council house. She is expected to remember whether the gentleman or lady sitting in front of her is a conveyancing practitioner for the moment or a solicitor for the moment. It is ludicrous that the answer, which she will never remember because she is interested only in buying her council house, depends on which regulation and which liability is involved. It is a completely ludicrous idea. If a solicitor is to escape liability to the Law Society of Scotland by calling himself a conveyancing practitioner he should come off the roll of solicitors and be a conveyancing practitioner. If he wants to be a solicitor, then he should remain as a solicitor.
I submit that this has nothing whatever to do with giving a choice to the client; it is a choice which the practitioner, whether or not he is a solicitor, must make. Either he is a solicitor or he is a conveyancing practitioner. He must make the choice.
On Question, amendment negatived.
Baroness Carnegy of Lour Baroness Carnegy of Lour moved Amendment No. 177:
Page 17, line 33, at end insert:
("(14) Any rules or regulations made in pursuance of this section in relation to conveyancing practitioners shall be incorporated into the practice rules of the Law Society of Scotland.").
The noble Baroness said: This amendment continues the theme of what we have just been discussing. It would add an additional subsection to Clause 15 requiring the Law Society of Scotland to impose upon private practice solicitors acting as conveyancers the same rules and regulations which the statutory code of conduct would impose upon non-solicitor conveyancers.
There are three main reasons why this provision is important. First, according to the draft code of
838
conduct contained in the Government's consultation paper of March 1989, the new conveyancing practitioners will be required to give a client in advance an estimate of what the total cost will be, the way the cost is calculated, the circumstances in which the fee may be increased and particulars of any additional expenses which may accrue; for example, registration fees or stamp duty.
The Scottish Consumer Council is of the view—and this may be the personal experience of some Members of the Committee—that solicitors in private practice in Scotland are still not all that good at giving clients price information in advance. Indeed, the council conducted a survey of the experiences of Scottish house purchasers. It found that, of those who responded, 37 per cent, had received no estimate about fees from their solicitor before the purchase and that 21 per cent, had to meet expenses which they had not expected or about which they had not been warned. If that is in any way a typical cross-section, it is not good enough.
Likewise, the rules regarding conflict of interest, whatever they turn out to be, which are to be imposed on new licensed conveyancers should surely also apply to solicitor conveyancers in private practice. I think that that was a point made by the noble and learned Lord, Lord McCluskey, earlier in the debate. There are circumstances in which solicitors can find themselves with conflicting interests. The public is well aware of that fact.
On Second Reading I pointed out that the Law Society's practice rules of 1986, while stipulating that a solicitor may act for two or more parties whose interests conflict, allow solicitors in the same firm to act for both sides of the deal in certain circumstances; for example, if both parties are established clients or are blood relations.
Judging by the perception and experience of that arrangement in my part of Scotland, where in the market towns the solicitors' firms practising are not large and property changing hands is seen to be everyone's business, I believe that solicitors need to be seen to be very careful about conflict of interests. Indeed, much of what my noble friend Lord Boardman said about conveyancers applies to solicitors.
It seems to the consumer council and to the citizens' advice bureaux that the public needs to know that it has the same protection whoever the conveyancer may be. I believe that solicitors in the Law Society will recognise that fact and that they may well agree to such a requirement being placed on the face of the Bill. In fact, however, this is only an exploratory amendment. I beg to move.
Lord Morton of Shuna: I would have great sympathy with this amendment if it included at the end the words "and vice versa"; or, if the wording were to be put around the other way so as to read:
"The practice rules of the Law Society of Scotland shall be incorporated in relation to conveyancing practitioners".
There are practising rules for solicitors; there are no practising rules for conveyancing practitioners. Therefore it would be logical that the rules that exist should be adopted by the body which does not yet exist. I quite agree that there should basically be the

839
same rules for each group. The practical difficulty is: who makes the rules? The Secretary of State is to make the rules for the board, as I understand it. The Council of the Law Society, subject to the approval of the Lord President, is to make the rules for the Law Society. Therefore who wins in a conflict is not made clear. The idea behind it is clear, if the noble Baroness accepts—as I am sure she will—a vice versa situation. We want the same rules both ways.
Lord Macaulay of Bragar: This is a strange amendment, if I may say so. It tends to ignore the fact that conveyancing practitioners will be special creatures of statute. Written into Clause 15(9) are the regulations which shall apply. The statute creates the conveyancing practitioners and lays down the guidelines for them.
The amendment ignores the fact that the Law Society is a long-established body in its own right. It is difficult to see how the rules for conveyancing practitioners could be imposed on the Law Society of Scotland. I do not know what its wishes are on the subject but as a matter of practicality it seems almost impossible to do that. As the noble and learned Lord, Lord Morton of Shuna, said, if it were the other way round one could see the force of the provision—the greater including the less rather than the less being imposed on the greater.
Lord McCluskey: I had intended to speak at some length on this matter but the noble and learned Lord, Lord Morton of Shuna, who addresses the Committee with such laconic brevity that it is almost universally appreciated, has dealt with all the points. I need only say that the practice rules of the Law Society of Scotland have evolved over a long period of time. They contain provisions which have been tried and tested against particular cases. Eventually they have reached a certain form. Principally for that reason, I say that this is the model and therefore I support the point that has been made that the provision is the wrong way round.
Further, we know what is in the practice rules because we can read them. They are printed in various documents and are readily available. We do not know what is to be contained in the rules or regulations made in pursuance of this clause. I am not prepared to buy that particular pig in a poke.
Subject to those two points, which have been well made by others, I support, as I did earlier, the principle that there ought to be equality of provision for the two sides. I beg the Government when considering this amendment between now and the Report stage—as they no doubt will—to say that the real starting point is the practice rules. Any deviation from those rules in respect of the conveyancing practitioners has to be justified.
Lord Fraser of Carmyllie: This is an interesting amendment in the context of the level playing field concept which has so dominated the debate about
840
the new ways of providing legal services. Clearly there is great merit in the argument that if regulations are to be imposed upon conveyancing practitioners it seems curious for the Law Society of Scotland in its rules to impose a lesser standard upon its own members. I think that was underlying the earlier remarks of the noble and learned Lord, Lord McCluskey.
The noble and learned Lord, Lord Morton, raised an interesting point which I confess had not occurred to me. In a curious way this might be seen as a device whereby the Secretary of State, in making regulations to affect conveyancing practitioners, might manage to sidestep the satisfactory existing arrangement, as I see it, in respect of the rules required of the Law Society.
It seems clear to me that the Law Society of Scotland will not wish to have lesser standards in the performance of the conveyancing services that its members are to offer. I suggest to the noble Baroness that although we understand what she is driving at, it can be left to the Law Society of Scotland to look to its own rules. I hope I can be confident that those rules impose no lower standard on its own members.
Lord Morton of Shuna: Before the noble and learned Lord sits down, perhaps he will also give an assurance that the conveyancing board will not impose a lower standard on conveyancing practitioners than the Law Society imposes on solicitors for conveyancing.
Lord Fraser of Carmyllie: We have set out fully in the clause the signposts in terms of the code of conduct. For example, I have referred to matters relating to interviews with clients, which, as I understand it, are at present not a requirement imposed on solicitors. Although there might be some differences, I cannot envisage that there will be any material differences between the duties imposed on conveyancing practitioners and solicitors.
Baroness Carnegy of Lour: I thank all noble Lords, including my noble and learned friend on the Front Bench, who have contributed to the discussion. This subject is important to the public. The noble and learned Lord, Lord McCluskey, said that it was important that the starting point should be the practice rules. I do not think that the public perception of the way that solicitors' rules work in a small town is completely satisfactory. The public see solicitors in the same firm working on two sides within rules. That point requires consideration. It is one of the main points that I wanted to raise. Having listened to the discussion with great interest, I shall read it in Hansard. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 15, as amended, agreed to.
[Amendment No. 178 not moved.]
10 p.m.
Clause 16 [Qualified conveyancers]:
[Amendment No. 178A not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 178B:
Page 8, line 1, leave out ("with the approval of the Secretary of State") and insert ("subject to subsection (3A) below").
The noble and learned Lord said: I apologise in advance as it may take me a moment or two to spell out exactly what the provisions are about. I was invited to deal with them earlier rather than leave until later matters relating to the Director General of Fair Trading which they essentially cover. In moving this amendment I shall speak also to Amendments Nos. 178C, 192A, 193A, 224B, 225B, 225C, 257A, 258A and 275F to 275J. I believe that that is a comprehensive list.
The amendments collectively set out to indicate what the functions and powers of the Director General of Fair Trading are to be and to apply them to the relevant parts of the Bill. Broadly speaking, where the Secretary of State has a role in the making of regulations or in the approval of professional rules, he is required under the provisions of the Bill to exercise it only after taking the advice of the director general. Although he is required to take the director general's advice, the final decision—I stress this point—on any question relating to such regulations or rules rests with the Secretary of State alone.
The amendments insert parallel provisions into the Bill and into the Solicitors (Scotland) Act 1980. The provisions inserted in the 1980 Act provide a consultative role for the Director General of Fair Trading when the Secretary of State is considering rules relating to solicitors' rights of audience in the Supreme Court or to solicitors' partnerships. Separate but parallel provisions are provided in the amendments to give a consultative role to the director general when the Secretary of State is making regulations relating to conveyancing practitioners or is approving rules made by the board in connection with qualified conveyancers or confirmation practitioners or by the Faculty of Advocates in relation to advocates' partnerships or advocates' practice rules.
A similar role is provided for the director general when the Secretary of State is considering a draft scheme for rights of audience or rights to conduct litigation for non-lawyers under Clause 20. The amendments provide the director general with sufficient powers to exercise his advisory role in accordance with a broader government policy. He is given a statutory remit to consider whether any regulation or rule on which he advises the Secretary of Stale is likely to restrict, distort or prevent competition. He is also given certain investigative powers to enable him to offer properly informed advice. Those who have been involved in the Courts and Legal Services Bill will doubtless know that those provisions are largely modelled on the equivalent provisions in that Bill.
In relation to all the rules and regulations other than those relating to rights of audience the Secretary of State, once he has received the advice of the director general, will consider in the light of that advice whether the regulations or rules in question meet the purpose prescribed in the Bill. Where the rules relate to the rights of audience for solicitors or solicitors' partnerships he will also be able to consider the interests of justice. The Secretary of State's role will therefore be to consider the advice of the director general in the context of the primary purpose of the rules and regulations and determine whether to approve or disapprove them.
Perhaps I may conclude by stressing again that the final decision on any regulations or professional rules where the Secretary of State is involved will rest with the Secretary of State. The director general's advice is an important ingredient in achieving a balanced judgment as to the impact of the regulations and the rules in question. With that explanation I hope that the amendments can be approved. I beg to move.
Lord McCIuskey: I am very grateful to the noble and learned Lord for taking the trouble to give a preliminary explanation of the clauses. It is unfortunate and certainly not his fault that he did not begin until three minutes past ten. That means that the report of the debates in your Lordships' Committee will not be in print until Thursday morning.
I want to say nothing more at the moment than that I regard the new clauses, of which this is one, as a considerable improvement on what is presently in the Bill. However, I am not at all sure what the Director General of Fair Trading has to do with the interests of justice as distinct from competition policy and other matters of that kind. The interests of justice are the responsibility ultimately of the Lord President and of the person who is the Minister of justice; namely, the Secretary of State for Scotland. However, I shall read with care what the noble and learned Lord has said and I am very grateful to him for having taken the trouble to explain the amendment.
Lord Fraser of Carmyllie: If I appeared to indicate that the Director General of Fair Trading had an involvement in the interests of justice, that was incrorrect. It is the responsibility of the Secretary of State, having received that advice, to put it into a broader context as he sees it.
As I indicated previously, my remarks were in the nature of a preliminary indication of how the various provisions hang together. I hope that that has been helpful for the later consideration that we shall have to give to the clauses, possibly on another day.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie: moved Amendment No. 178C:
Page 18, line 7, at end insert:
("(3A) Before making any rules under subsection (3) above the Board shall submit them to the Secretary of State for his

843
approval, and before approving any such rules the Secretary of State shall consult the Director in accordance with section (Advisory and supervisory functions of the Director) of this Act.").
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 178D:
Page 18, leave out lines 10 to 18.
The noble and learned Lord said: In moving Amendment No. 178D I propose to speak also to Amendments Nos. 178E, 178F, 202A, 204A and 204C. The amendments represent a rationalisation of the structure of Clause 18, although clearly they start with Clause 16, to encompass all the disciplinary provisions relating to conveyancing practitioners and confirmation practitioners and, if the amendments are accepted, qualified conveyancers. As drafted the disciplinary provisions relating to qualified conveyancers appear at Clause 16(5). I hope your Lordships will agree that it is more logical for all of the board's disciplinary functions to be dealt with in one clause. I beg to move.
Lord McCluskey: I only want to say a word which echoes something which I and others said earlier. The problem is that these amendments, including this amendments, are so substantial that it is becoming extremely difficult for Members of your Lordships' Committee to follow what Clause 16 is ultimately saying, particularly as it has now to be read in the context of the new clauses. So we may have to come back to this at a later stage. Certainly for my purposes at the moment I want to reserve my position entirely. The mere fact that I do not propose to speak again on this amendment does not signify that I accept it in any way. It is simply that at the moment I do not fully understand it.
Lord Fraser of Carmyllie: I hope that when the noble and learned Lord, Lord McCluskey, sees it in its proper form before Report he will be satisfied. But I wholly understand his position.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 178E:
Page 18, line 20, leave out from ("above") to end of line 23 and insert ("the applicant").
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 178F:
Page 18, line 26, leave out ("or, as the case may be, the qualified conveyancer").
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 178G:
Page 18, line 28, at end insert:
("(7A) Where a qualified conveyancer applies to the Board to remove his name from the register the Board shall grant the application and amend the register accordingly.").
On Question, amendment agreed to.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 179:
Page 18, line 29, at end insert ("and to each Sheriff Clerk").
The noble and learned Lord said: This is a very technical amendment, and I believe that I should also speak to Amendments Nos. 179, 179A, 180 and 189. At this point the Bill provides that the notice should be sent to the Keeper of the Registers of Scotland and I propose to add "and to each Sheriff Clerk". In Amendment No. 189 I do the reverse and say that when it goes to the sheriff clerk it also goes to the Keeper of the Registers.
It seems on the advice I have received that those advising the noble and learned Lord have forgotten that notices of inhibition have to be registered in sheriff courts on occasion, and on occasion things such as wills that one would think are originally being registered in the sheriff courts have also to be registered with the Keeper of the Registers, and it would be better for the information to go to each. I beg to move.
Lord Fraser of Carmyllie: As I understand, there are no restrictions on who may register deeds or documents in the Register of Inhibitions and Adjudications, nor in the sheriff court books. That being so, it is not necessary for the purposes of such registrations for the Keeper of the Registers or sheriff clerks to know the names of those who are registered as qualified conveyancers. In view of that, it appears to me that the noble Lord's amendment, unlike others where there was a necessity to notify who was a qualified conveyancer, is unnecessary.
Lord Morton of Shuna: Perhaps the noble and learned Lord will look at Amendment No. 189 and also take advice about the question of notices of inhibition. On Amendment No. 189, as the noble and learned Lord is no doubt well aware, wills are frequently linked in title in conveyancing and the Keeper of the Registers likes to know about wills. If people have to register them, he likes to know that the person registering them is qualified to register them. That is the only point. It is a fairly simple one. I do not wish to delay the Committee and I thought the noble and learned Lord would know about it.
Lord Fraser of Carmyllie: I: have looked at the matter. I think the amendment is unnecessary, but I shall check.
Lord Morton of Shuna: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 179A and 180 not moved.]
10.15 p.m.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie: moved Amendment No. 180A:
Page 18, line 43, at end insert:—
(", and any enactment or subordinate instrument making provision as to the form of such a warrant or application shall, with the necessary modifications, apply in relation to a qualified conveyancer.

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(9A) A qualified conveyancer who signs a warrant or application by virtue of subsection (9) above shall, in addition to any matters required to be specified after his signature by any enactment or subordinate instrument, specify the conveyancing practitioner or solicitor by whom he is employed or, where he is himself a conveyancing practitioner, his designation as such.').
On Question, amendment agreed to.
[Amendment No. 181 not moved.]
Clause 16, as amended, agreed to.
Clause 17 [Confirmation practitioners]:
[Amendments Nos. 182 to 187 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 187A:
Page 19, line 23, leave out ("a bank") and insert ("an institution").
On Question, amendment agreed to.
The Earl of Balfour The Earl of Balfour moved Amendment No. 188:
Page 19, line 35, leave out ("and").
The noble Earl said: I have already spoken to this amendment. I beg to move.
Lord Fraser of Carmyllie: I have already indicated that this amendment is acceptable.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 188A:
Page 19, line 45, at end insert:
("(7A) Where a confirmation practitioner applies to the Board to remove its name from the register the Board shall, if they are satisfied that the practitioner has made adequate arrangements with respect to the business it then has in hand, grant the application and amend the register accordingly.").
On Question, amendment agreed to.
[Amendments Nos. 189 to 191 not moved.]
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 192:
Page 20, line 6, leave out ("may") and insert ("shall").
The noble Lord said: This is a very short amendment to subsection (9) of Clause 17. It is going over the old ground of the "may" and "shall" argument. To put the point shortly, the amendment seeks to replace the word "may" with "shall" to put an element of compulsion into the production of rules as to the standard of conduct and practice of confirmation practitioners. As the Bill stands at the moment the board would be under no obligation to produce any rules in relation to these matters: the substitution of the word "shall" will alter that situation. I beg to move.
Lord Fraser of Carmyllie: Perhaps I may take this matter away and consider it.
Lord Macaulay of Bragar: In the light of that undertaking, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 192A:
Page 20, line 6, leave out ("with the approval of the Secretary of State") and insert ("subject to subsection (9A) below").
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 192B:
Page 20, line 7, leave out ("as to the") and insert ("with a view to the maintenance of appropriate").
The noble and learned Lord said: The purpose of this amendment is to give a clear indication as to what the rules, if any, made by the board under Clause 17(9) are intended to achieve. The Committee will note that, as presently drafted, this subsection does not give the board a great deal of guidance as to the direction that its rules should take. The amendment makes clear that the purpose of the rules in question is to maintain necessary standards of conduct and practice.
It is also important that the Secretary of State has a statement of purpose for the rules to which he can refer when he is required to consider them in the light of any advice that he has received from the Director General of Fair Trading on their contents. I beg to move.
On Question, amendment agreed to.
[Amendment No. 193 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 193A:
Page 20, line 8, at end insert:
("(9A) Before making any rules under subsection (9) above the Board shall submit them to the Secretary of State for his approval, and the Secretary of State shall consult the Director in accordance with section (Advisory and supervisory functions of the Director) of this Act; and thereafter, having considered—
(a) any advice tendered to him by the Director; and
(b) the interests of the public in the maintenance of appropriate standards of conduct and practice of confirmation practitioners,
he may approve or refuse to approve the rules or any of them.").
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie: moved Amendment No. 193B:
Page 20, line 8, at end insert:
("(9B) The Board shall make such arrangements as are necessary to ensure the satisfactory completion of any work in hand when the registration of a confirmation practitioner is suspended or revoked or the practitioner ceases, for whatever reason, to provide confirmation services.").
On Question, amendment agreed to.
[Amendments Nos. 194 to 198 not moved.]
Clause 17, as amended, agreed to.
[Amendment No. 199 had been withdrawn from the Marshalled List.]
Lord Morton of Shuna Lord Morton of Shuna: moved Amendment No. 199A:
After Clause 17, insert the following clause:
("Practising certificates
.—(1) A person shall not practice as or hold himself out as a conveyancing practitioner, qualified conveyancer of an executry practitioner at any time unless at that time he holds a current practising certificate.

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(2) The Board shall issue a practising certificate to any applicant whose name is currently on the appropriate register and whose application complies with rules made under subsection (3) below,
(3) the Board shall makes rules prescribing—
(a) the fee to be paid by an applicant (and different fees may be prescribed for different classes of applicant);
(b) the form in which the application is to be made;
(c) the information to be provided by the applicant;
(d) the circumstances, which may include mental illness, bankruptcy or insolvency, in which a practising certificate may be suspended or revoked, and
(e) the cases in which, and by whom, notification to the Board is required that any of the prescribed circumstances has arisen,
and such other matters as appears to the Board to be necessary.
(4) The Board shall keep a register of practising certificates for the time being in force, and that register shall be open to inspection by members of the public free of charge at all reasonable hours.
(5) Subject to subsection (6) below, a practising certificate shall be in force for a period of one year from the date on which it is issued or such later date, if any, as the Board may specify in the certificate.
(6) A practising certificate shall cease to be in force immediately upon the holder's name ceasing to appear in the appropriate register whether by reason of the suspension of his registration or otherwise).
(7) A person who contravenes subsection (1) above shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale and to imprisonment for a period not exceeding one month.
(8) Where a person has contravened subsection (1) above, the fact may be taken into account as a determining factor in considering whether he has been guilty of professional misconduct.
(9) In this section references to the appropriate register shall be construed—
(a) in relation to a conveyancing practitioner, as a reference to the register maintained under section 15 of this Act;
(b) in relation to a qualified conveyancer, as a reference to the register maintained under section 165 of this Act;
(c) in relation to a executry practitioner, as a reference to the register maintained under section 17 of this Act.").
The noble and learned Lord said: It is a long amendment but its principle is fairly clear. The Law Society of Scotland has operated a system under which everyone who is a solicitor has a practising certificate authorising him to operate. The certificate lasts for a year and has to be renewed. It is a useful procedure. It enables someone who does not renew it to go off the roll; someone who is struck off may not have a chance of renewing it.
Having a certificate enables one to demonstrate that one is authorised to do what one sets out to do, rather as a road traffic licence does. The provision here aims to produce practising certificates for the conveyancer and conveyancing practitioner and the executry practitioner. That is the term that I have used, but if it becomes a confirmation practitioner the principle would also apply. There is much practitical use in having a certificate, licence or whatever one cares to call it. I beg to move.
Lord McCluskey: I support the principle of the amendment. I notice that in the first line the verb "practice" is spelt with a "c". That is the way that the Americans spell it. I expect that it was entirely intentional that we should move over to American
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spelling since in other parts of the Bill we are moving to American practices in relation to the provision of legal services. However, that may not be the intention.
I support the principle. At this time of night I shall not take up time in rehearsing further arguments. I look forward to hearing the Government's response.
Lord Morton of Shuna: I am sorry. I am surprised that my noble and learned friend did not notice that there is also a misprint on the second line of subsection (1). The word of should read "or".
Lord McCluskey: Yes, I did!
Lord Fraser of Carmyllie: In many respects the Bill provides for conveyancing and confirmation practitioners and qualified conveyancers to be subject to a regulatory regime similar to that applying to solicitors. For example, the requirements for registration include indemnity insurance and the requirement to comply with practice rules. There are many other similarities in the handling of complaints and discipline.
The Law Society will require to maintain a fund to compensate clients in the event of loss through dishonesty and the offence provisions for impersonation are, subject to the disagreement that we had some time ago, broadly comparable. Like the society the board will maintain a register of practitioners. It will provide for this register to be open for public inspection. All these matters are covered specifically in the Bill. In addition, the board will enjoy considerable freedom to exercise its functions in such manner as it considers necessary or expedient.
I believe that we have struck a good balance between what we regard as essential in the way of powers and functions of the board and what can be left to the board's discretion. In this context, we have not thought it necessary to provide for a scheme of annual practising certificates. The initial requirements for registration are rigorous, as are the disciplinary provisions in the event of practitioners failing to comply with rules, or in any way acting in an unprofessional manner or offering inadequate services.
I believe, therefore, that we have provided the board with a sufficient range of powers to regulate the provision of conveyancing and confirmation services in the interests of clients. We have not considered it necessary to impose a system of practising certificates as an essential part of the regulatory mechanism. However, that is not to say that the board will not devise some means whereby it can keep in regular contact with those whom it has registered. Indeed, in order to raise income through fees to finance activities I regard as highly likely the board imposing some kind of periodic levy on practitioners. Although that is not the same as issuing an annual certificate to practise it would imply regular contact with practitioners. There may be differences but it appears that in practice a real opportunity is open to the board to replicate the practising certificate for solicitors.
Lord Morton of Shuna: I regret to say that I regard that remark as being out of touch with reality. Does the noble and learned Lord really expect someone who goes to a qualified conveyancer in Lochmaddy, and who wishes to know whether that person is a qualified conveyancer, to be told, "Yes, the board in Edinburgh or Glasgow has a list that you can inspect"?
A solicitor receives a piece of paper which is a practising certificate. Some solicitors have the habit of hanging it in their waiting rooms. If a qualified conveyancer has a certificate what is wrong with his being able to assure the client? After all, we are supposed to be thinking of the lay client and there is a great deal to be said for a certificated person being able to say immediately, "Here is my certificate; look at it".
I hope that the noble and learned Lord will look at the matter again. It is no answer to say to the general public that a list is kept by some amorphous board.
Lord Fraser of Carmyllie: I had sought to indicate to the noble and learned Lord that I hope that what is already in place will be sufficient to meet all the difficulties met by a client going to a conveyancing practitioner. I hoped to indicate the fact that there is a possibility that a document similar to a practising certificate will be in place. He may consider that I am naive—
Lord Morton of Shuna: If the noble and learned Lord considers that there will be some form of practising certificate let us not worry about the name. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 200 and 201 had been withdrawn from the Marshalled List.]
Clause 18 [Professional misconduct, inadequate professional services, etc.]:
[Amendment No. 202 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 202A:
Page 20, line 32, at end insert:
("(1A) Where, after such inquiry as they consider appropriate (whether or not following a complaint to them), the Board are satisfied that a qualified conveyancer—
(a) is guilty of professional misconduct; or
(b) has been convicted of a criminal offence rendering him no longer a fit and proper person to provide conveyancing services as a qualified conveyancer,
they may take such of the steps set out in subsection (3A) below as they think fit.').
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 202B:
Page 20, leave out lines 33 to 42.
On Question, amendment agreed to.
10.30 p.m.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 202C:
Page 21, line 14, after ("registration;") insert—
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("(da) subject to subsection (3B) below, to impose on the practitioner a fine not exceeding £10,000;
(db) to censure the practitioner;").
The noble and learned Lord said: I shall speak also to Amendments Nos. 203A, 203B and 204D. These amendments provide further disciplinary powers for the board which we consider necessary to ensure both a level playing field in disciplinary terms between solicitors and any new providers of legal services and that the board's disciplinary function carries sufficient weight to meet its purpose in full measure. The board is given a power to fine a solicitor or qualified conveyancer up to a maximum of £10,000 and a power of censure. Both those powers correspond to similar powers which are available to the Scottish solicitors' discipline tribunal. While I would not expect to see those powers used frequently, they are important to ensure that sufficient sanctions are available to meet every contingency.
The second of the amendments inserts a new subsection (3B) into Clause 18, the purpose of which is to prevent the board imposing a fine on a practitioner who has already been convicted of the same offence in a court of law and has been sentenced to a term of imprisonment of two years or more. Clearly it would not be acceptable for practitioners to have to face a double jeopardy for the same offence.
The new subsection (3C) prevents a possible conflict of interest which may arise for a self-financing board where it has a discretion over the amount of any fine and is at the same time mindful of its own financial needs. Therefore, this new subsection provides that any fines imposed by the board under this clause are to be forfeited to the Exchequer. They are also to be recovered on the same terms as a fine imposed by the High Court. I beg to move.
Lord Morton of Shuna: At the instigation of the Law Society I tabled Amendments Nos. 202D and 203AA some time before the noble and learned Lord tabled his amendments. They are to the same effect, except that I said that the £ 10,000 should be forfeited to Her Majesty and the noble and learned Lord wants it to go to the Treasury. That is probably a distinction without a difference.
However, it would have been gracious of the noble and learned Lord had he said that his amendments were in response to the amendments tabled in my name. Let us make no fuss about that. I shall not move my amendments and I shall not oppose those of the noble and learned Lord.
Lord Fraser of Carmyllie: It may come as a surprise to the noble and learned Lord that it was not a matter of discourtesy towards him. Part of his provision is worth while; that is, subsection (3A) on annulments. On Report I propose to move an amendment which will provide for a variation order. Therefore, far from being ungracious, I was hoping to thank him for tabling his amendments.
Lord Morton of Shuna: That is very gracious. I gratefully accept it. It is remarkable what may happen late in the evening.
Lord McCluskey: I deal with a slightly different point. As I listened, in a sense, from the wings to this debate, read the new provisions and heard the undertakings given by the noble and learned Lord, as we go through the Bill and amendments are moved and accepted, this body called the board is looking more and more like the Law Society of Scotland. By Third Reading I fully expect the noble and learned Lord will be standing at the Dispatch Box moving amendments, saying, "And the board shall be called the Law Society of Scotland and practitioners shall be called solicitors ad hoc".
The logic of the Government's rhetoric about a level playing field and the interests of the public is driving them towards accepting a position whereby the restrictions which exist and which clients obtain in relation to solicitors must be conferred on the same clients and members of the public in relation to conveyancing and confirmation practitioners. At the end of the day the Government are getting very close to re-enacting the 1949 legislation dealing with legal aid and solicitors.
On Question, amendment agreed to.
[Amendment No. 202D not moved.]
[Amendment No. 203 had been withdrawn from the Marshalled List.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie: moved Amendment No. 203A:
Page 21, line 19, at end insert—
("(3A) The steps referred to in subsection (1A) above are—
(a) to suspend or revoke the registration of the qualified conveyancer;
(b) subject to subsection (3B) below, to impose on the qualified conveyancer a fine not exceeding £10,000; and
(c) to censure the qualified conveyancer.
(3B) The Board shall not impose a fine under subsection (3)(da) or (3AXb) above where, in relation to the subject matter of the Board's inquiry, the practitioner or, as the case may be, the qualified conveyancer has been convicted by any court of an offence involving dishonesty and sentenced to a term of imprisonment of not less than two years.
(3C) Any fine imposed under subsection (3)(da) or (3A)(b) above shall be treated for the purposes of section 203 of the Criminal Procedure (Scotland) Act 1975 (fines payable to HM Exchequer) as if it were a fine imposed in the High Court.").
On Question, amendment agreed to.
[Amendment No. 203AA not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie: moved Amendment No. 203B:
Page 21, line 32, after ("(d)") insert ("or (3A)(a)"). On Question, amendment agreed to. [Amendment No. 204 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie: moved Amendment No. 204A:
Page 21, line 34, after ("practitioners") insert ("or the register of qualified conveyancers").
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie: moved Amendment No. 204B:
Page 21, line 34, at end insert—
("(6A) Where the Board take a step set out in subsection (3)(d) or (3A)(a) above shall—
852
(a) subject to subsection (6B) below, publish their decision; and
(b) make available a copy of every decision published under paragraph (a) above for inspection by any person without charge.
(6B) In carrying out their duty under subsection (6A) above, the Board may refrain from publishing any names, places or other facts the publication of which would in their opinion, damage or be likely to damage the interests of persons other than the practitioner or qualified conveyancer to whom the decision relates, but where they so refrain they shall publish their reasons for so doing.").
The noble and learned Lord said: This amendment should encourage openness in the board's handling of disciplinary matters. The revocation or suspension of a practitioner's registration, and the imposition of a fine, are clearly matters of considerable public interest. It may help the Committee if I explain that a corresponding amendment will be moved at a later stage to put the Scottish solicitors' disciplinary tribunal under a similar duty to publish, with the same discretion to withhold details in certain cases. The public interest is a visibly accountable disciplinary system for conveyancing and confirmation practitioners will be well served by this amendment. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 204C:
Page 21, line 35, leave out ("or (d) above the practitioner") and insert ("to (db) or (3A) above the practitioner or, as the case may be, the qualified conveyancer").
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie: moved Amendment No. 204D:
Page 21, line 39, at end insert—
("(8) Part II of Schedule 1 to this Act (Board's powers of investigation for the purposes of inquiries under this section) shall have effect.
(9) In this section "conveyancing practitioner", "confirmation practitioner" and "qualified conveyancer" respectively include any conveyancing practitioner, confirmation practitioner or qualified conveyancer whether or not it or he was registered as such at the time when the subject matter of the Board's inquiry occurred and notwithstanding that subsequent to that time it or he has ceased to be so registered.").
The noble and learned Lord said: In moving this amendment I speak also to Amendment No. 205A. The purpose of the amendment is to ensure that communications between a conveyancing and confirmation practitioner and his or her client are confidential and privileged to the same extent as those between a solicitor and client.
It is clearly important to ensure that conveyancing and confirmation practitioners are not disadvantaged in offering their services to clients through not enjoying the same privilege in relation to communications. The amendment does not give any wider privilege than necessary. It will also reassure clients that any communication they make with their conveyancing or confirmation practitioner is confidential and protected to the same extent as communications with a solicitor.
I trust that this is not a contentious matter, since the legal concept of privilege has been accepted in relation to solicitors in Scotland for a very long time. I beg to move.
Lord Morton of Shuna: I: believe the amendment is coupled with Amendment No. 205A. The difficulty with regard to the amendment is that it imposes the privilege of confidentiality but not the obligation of confidentiality. No doubt the noble and learned Lord wished to impose both the obligation and the privilege, and perhaps he would consider at the next stage putting on the practitioner the same duty as exists on the solicitor—the obligation of confidentiality. It is a very important obligation to the client.
Lord Fraser of Carmyllie: As I indicated, if we are looking not only to put conveyancing practitioners in the same position as solicitors but also to reassure clients, I would consider whether the noble and learned Lord's suggestion is necessary. If it is not adequately covered by the amendments I have already moved, I shall certainly look to achieve that objective.
On Question, amendment agreed to.
[Amendment No. 205 not moved.]
On Question, Whether Clause 18, as amended, shall stand part of the Bill?
Lord McCluskey: I am sure that I am out of order but I observe that the Leader of the House is sitting on the Government Front Bench and I should like to raise a point for his consideration, together with his noble and learned friend the Lord Advocate.
We are shortly to deal with Clause 19 and then move on to Clause 20 and the whole fasciculus of clauses dealing with rights of audience. That is an entirely different subject to any that we have discussed in the Committee stage. It is an extremely important part of the Bill. It is a matter on which many noble Lords who are not present will wish to speak; for example, the noble Lord, Lord Renton, has left the Chamber.
Therefore, I hope it is proper for me to ask the Leader of the House and the noble and learned Lord the Lord Advocate whether they believe it is right to start debating rights of audience at approximately 11 p.m. when the Committee is almost empty. This is a matter of great importance which needs to be discussed at the proper time of day.
Lord Macaulay of Bragar: I endorse what the noble and learned Lord, Lord McCluskey, said on this matter. I seem to recall that on the Committee stage of the Courts and Legal Services Bill protests were made as the time wore on because people were getting tired. We have been going at a considerable pace and I agree that this is not the time to enter the realms of rights of audience, as some noble Lords may be feeling the pace more than others.
Lord Fraser of Carmyllie: It is correct that when we have concluded Clause 19 we shall turn to the wholly different issue of rights of audience, and I appreciate as clearly as the noble and learned Lord that we have been going for a long time.
The noble and learned Lord said that there were important aspects of Clause 20 on which noble Lords will want to speak, but there are a number of
854
amendments at the beginning of Clause 20 on which there is probably a considerable measure of agreement. It might be of advantge to at least reach the point of dealing with the amendments on which there is some agreement so that in future we can see what remains to be discussed on matters that may be disputed.
Lord Morton of Shuna: The noble and learned Lord will no doubt consider the fact that, while there is agreement between him and one or more of the noble and learned Lords who have tabled amendments to Clause 20, that may have nothing to do with other noble Lords who are not present and who may wish to contribute to the debates. There is a great difficulty if a noble Lord produces an amendment which is acceptable to the Government and that is whizzed through late at night when it is known that other noble Lords have differing views. We know that there are differing views on the subject of rights of audience.
Lord McCluskey: Perhaps I may add that I disagree with my noble and learned friend Lord Morton of Shuna and agree with the noble and learned Lord the Lord Advocate that there is a large measure of agreement and that it is proper that that agreement should be dealt with and recorded tonight. I would certainly come back to the matter if the noble and learned Lord the Lord Advocate sought to move on to controversial matters tonight. It is extremely important that contentious matters should be dealt with when the Committee is more fully attended.
Clause 18, as amended, agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie: moved Amendment No. 205A:
After Clause 18, insert the following new clause—
("Disclosure of documents etc.
.—(1) Any communication made to or by a conveyancing practitioner or a confirmation practitioner in the course of its acting as such for a client shall in any action or proceedings in any court be protected from disclosure on the ground of confidentiality between client and professional legal adviser in like manner as if the practitioner had at all material times been a solicitor acting for the client.
(2) Any enactment or instrument making a special provision in relation to a solicitor or other legal representative as to the disclosure of information, or as to the production, seizure or removal of documents, with respect to which a claim to confidentiality between client and professional legal adviser could be maintained, shall, with any necessary modifications, have effect in relation to a conveyancing practitioner and a confirmation practitioner as it has effect in relation to a solicitor.").
On Question, amendment agreed to.
10.45 p.m.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 206:
After Clause 18, insert the following new clause—
("Duty of Secretary of State to report to Parliament.
The Secretary of State shall report to Parliament within two years of the Board first registering a conveyancing practitioner to provide conveyancing services and every two years thereafter on the effect which conveyancing practitioners offering conveyancing services has had on the availability of legal services generally, and of services provided under the Legal aid Scheme.").
The noble and learned Lord said: In moving this amendment I speak also to Amendment No. 212 which stands in the name of the noble Baroness, Lady Carnegy of Lour, and the noble Lords, Lord Mackie of Benshie and Lord Evans of Claughton. There is only one difference between the two amendments apart from the place in which they arise in the Bill. My amendment suggests that apart from a report within two years of the first conveyancing practitioner being registered there should be a report every two years thereafter. Amendment No. 212 simply suggests one report two years after the registration of the first practitioner and then there are no more reports.
Perhaps a regular report is more appropriate because in the first two years there might be only one building society, for example, wanting to register as a conveyancing practitioner. Two years thereafter there might be many more. It is absolutely essential, whichever way one looks at the matter, that the provision of legal services and the effects of the conveyancing board and its acolytes should be looked at and monitored very carefully. Though I am aware that the Government have undertaken to do this, they have not undertaken to tell anybody of the result.
This amendment is to ensure that the result is known and, if necessary, a debate can be instigated in this House. In principle, I do not think there is any difference of view between the noble Baroness and myself concerning the amendments except the precise wording. I beg to move.
Baroness Carnegy of Lour: In support of my Amendment No. 212, I agree with the noble and learned Lord that there is virtually nothing between the two amendments. I know that the Law Society of Scotland is very anxious that the monitoring should be very carefully done. It fears that a substantial number of firms may lose their conveyancing business as a result of competition. I believe that solicitors' firms are going to rise to the challenge of new competition and probably we shall not find cataclysmic results. There is no question but that the monitoring has to be carefully done. The Consumer Council has been told by the Government that they intend to carry out the monitoring very thoroughly. It is not an entirely impractical suggestion that some formal arrangement might be made such as this. I shall be interested to hear what my noble and learned friend has to say.
Lord Mackie of Benshie: I wish to support the amendment which bears my name. It is quite obvious from the concern expressed by all kinds of people about the effects of the measure, particularly on rural practices, that the Government must monitor what is going on. Otherwise we may find that instead of increasing competition and having a better service, the provision could lead to a total deterioration of legal services for ordinary people in rural Scotland.
Lord Fraser of Carmyllie: I appreciate the concern that lies behind both new clauses, which was also
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apparent in the discussion of earlier amendments. I am happy to confirm that my right honourable friend the Secretary of State for Scotland has already put in hand research to establish the geographical location of solicitors' offices and how accessible they are to the population.
I indicated earlier that an article appeared recently in the Scots Law Times which went some way in Easter Ross to try to analyse the problem. But, curiously, we know remarkably little about these matters. Perhaps I may reassure the noble and learned Lord and my noble friend Lady Carnegy that not only is the research in hand but it is intended that it will be repeated at intervals.
The Government remain committed to ensuring that those who need legal services in both urban and rural areas continue to have adequate access to them. While I would not be prepared to accept the idea of a formal report to Parliament after the fixed period of two years, what I believe lies properly behind the amendment is that there should be this research and there should be proper consideration of the impact of the changes. I hope that the noble and learned Lord will withdraw the amendment.
Lord Morton of Shuna: It is all very well to say that there will be research but the National Consumer Council and other organisations should know the results of that research. It is all very well for the research to be carried out but the Secretary of State should publish the results. If the noble and learned Lord will undertake that he will—
Lord Fraser of Carmyllie: In saying that it had been put in hand by my right honourable friend I did not mean that it would be a research project undertaken in circumstances of the utmost secrecy. If there are important lessons to be learnt I entirely agree with the noble and learned Lord that those who are interested should know the results.
Lord Morton of Shuna: So long as there is an undertaking that the results will be published quickly as soon as they are available—I am surprised that New St. Andrew's House has difficulty in finding out where solicitors are—I shall ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 19 [Interpretation of sections 14 to 18]:
[Amendments Nos. 207 to 211 not moved.]
Clause 19 agreed to.
[Amendment No. 212 not moved.]
Clause 20 [Rights of audience in the Court of Session, the House of Lords, the Judicial Committee of the Privy Council and the High Court of Justiciary]:
The Deputy Chairman of Committees (Lord Airedale): I have to remind the Committee that if Amendment No. 212A is agreed to I cannot call Amendments Nos. 212B to 220.
Lord Emslie Lord Emslie moved Amendment No. 212A:
Page 22, line 28, leave out from ("who") to the end of line 14 on page 23 and insert ("—
(a) seeks a right of audience in, on the one hand, the Court of Session, the House of Lords and the Judicial Committee

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of the Privy Council or, on the other hand, the High Court of Justiciary; and
(b) has satisfied the Council as to the requirement provided for in this section,
shall have a right of audience in those courts or, as the case may be, that court.").
(2) The requirements mentioned in subsection (1), in relation to the courts or, as the case may be, the court in which a solicitor seeks a right of audience, are that—

(a) he has completed to the satisfaction of the Council, a course of training in evidence and pleading in relation to proceedings in those courts or that court;

(b) he has such knowledge as appears to the Council to be appropriate of—

(i) the practice and procedure of; and

(ii) professional conduct in regard to, those courts or that court; and

(c) he has satisfied the Council that he is, having regard among other things to his experience in appropriate proceedings in the sheriff court, otherwise a fit and proper person to have a right of audience in those courts or that court.").

The noble and learned Lord said: In moving this amendment it may be helpful to the Committee if I mention Amendments Nos. 220B, 220E and 223. These amendments are to subsections of the new Section 25A which is introduced by Clause 10. These subsections are interrelated and accordingly the amendments which are proposed are interrelated and ought to be seen together.
I have not lost the anxiety which I expressed at Second Reading about Clause 20, but at this stage I feel it is my duty to be as helpful to the noble and learned Lord the Lord Advocate as I can be. If Clause 20 survives, its provisions must be such as are likely to make the scheme at least as satisfactory as can be expected. The general objective is that the clause must spell out the requirements which a solicitor must satisfy if he is an aspirant for rights of audience in the supreme court. These requirements must be both sound and relevant.
The other general objective must be to give adequate guidance to the Council of the Law Society, which will have the very difficult duty of devising training rules and conduct rules, the content of which must be such as to be likely to command the approval of the Lord President.
As I see it, the deficiencies in subsections (2) and (3) of Section 25A are these. As I attempted to suggest on Second Reading, the first is that experience of sheriff court practice, for however long, affords no useful test of competence to plead in the superior courts The standards are different. Indeed, the longer a solicitor remains in practice the more likely it will be that bad habits will become ingrained, and bad habits tend to waste time and cost other people money.
The other weaknesses are as follows. There is no need for two separate subsections (2) and (3) in Section 25A. The word "pleading" contained in subsections (2)(a) and (3)(a) is by itself much too narrow. In subsections (2)(c) and (3)(c) there is no reference to the important question of professional conduct. Finally, in subsections (2) and (3) we find a total silence on the important question of character; namely, whether the aspirant is a fit and proper person to be entrusted with rights of audience in the Court of Session and the High Court.
My amendment attempts to cure the deficiencies in Section 25A(1)(2) and (3) and it is conceived in this form. It tidies up subsections (1), (2) and (3) by running subsections (2) and (3) together in a single subsection which will say all that has to be said for all relevant purposes. In the amended subsection (2)(a) in my amendment, the training which ought to be carried out should be not only in evidence but also in pleading. In amended subsection (2)(b) the knowledge which is to be expected is not only to be of practice and procedure; it must also include professional conduct in relation to the particular court.
I should point out that these matters are merely a reflection of the requirements of the compulsory examination which every solicitor entrant to the Faculty of Advocates must pass if he is to become an advocate holding public office. Noble Lords will also observe in subsection (2)(c) of the amendment that the fit and proper person test is introduced. That is to ensure so far as is possible that the aspirants meet the standards which are appropriate for the superior courts. There is nothing new in that proposal because, as Members of the Committee may well know, solicitor entrants to the Faculty of Advocates have to pass that test if they are to be admitted to the public office of advocate. In the context of a fit and proper person test, there is a reference in my amendment to experience in the sheriff court. This is the right place to put it. It is a very much more flexible way of dealing with what now appears in Section 25A subsections (2)(b) and (3)(b).
Amendment No. 220B concerns Section 25A(4). It is purely consequential upon acceptance of Amendment No. 212A. Penultimately, I turn to Amendment No. 220E, which deals with subsection (5). I am glad to see that the amendment which has been tabled by the noble and learned Lord the Lord Advocate is a very good one. I say that because it echoes the language of my amendment, except for the omission of four words; namely, "the duration of and". In any event, that is a good start for me.
In my view subsection (5) as drafted gives inadequate guidance to the Law Society as to what the rules governing training must contain if they are to have any practical effect and if they are likely to commend themselves to the Lord President on approval. If Clause 20 survives, we surely must have rules which will ensure so far as is possible that solicitors will have the thorough kind of training which is likely to equip them to appear in court without impairing the quality and efficiency of the administration of justice.
All advocates, including those who have been solicitors, must undergo the rigorous training of pupillage. We should be looking for a course of training which will not be materially less effective. In short, if the rules are to be useful they must be designed to secure that objective. They must define the methods of instruction. In my submission they ought to specify the duration of the course of training which is envisaged by the Law Society. The duration may differ according to the courts for which people are being trained. The rules must also spell out, it seems to me, the qualifications of those who will do

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the teaching because I suspect that solicitors are not equipped to teach each other about the matters which become important when we consider a right of audience in the supreme courts.
Finally, referring to subsection (5), provision must be made for testing a solicitor's knowledge of professional conduct in relation to particular courts, as well as his knowledge of practice and procedure.
Amendment No. 223 refers to subsection (6), rules of conduct. Here again, perhaps because of the haste in which the Bill or this part of the Bill has been conceived, I find that inadequate guidance has been given to the Council of the Law Society. It seems to me that it would be sensible to provide that the rules to be made should correspond as nearly as may be to those which apply to advocates. I cannot think of anything much more awkward or difficult for the supreme courts if advocates or solicitors appearing before them were subject to different rules of professional conduct. I do not think that it would do any harm to give the Council of the Law Society a hint that what it ought to be driving at is a set of rules that would not be materially different from those which govern the conduct of advocates. I cannot for a moment imagine that the Lord President would be inclined to approve of rules that did not quite satisfy that test. Technically, I ought simply to move Amendment No. 212A at this stage. I beg to move.
11 p.m.
Lord Fraser of Carmyllie: Perhaps I may rise, arguably prematurely. What I have to say may be helpful to the Committee. It is my intention to accept Amendment No. 212A, moved by the noble and learned Lord. I am grateful to him for putting it down. I understand that it enjoys not only his distinguished support but that of his successor as Lord President. I am grateful to him for the great care that he has given to the preparation of the amendment and for suggesting ways in which the requirements to be placed on those who seek rights of audience in the supreme courts might be better defined to match more closely the practice and procedures of those courts.
I think that the amendment also improves the structure of the clause, as the noble and learned Lord indicated, by combining the requirement for the civil and criminal courts in one place. I am grateful to him, as I have said. In view of the way in which he approached the matter, I agree that his Amendment No. 220B is essentially consequential upon this amendment. If Amendment No. 212A is acceptable to other Members of the Committee I similarly propose to accept his Amendment No. 220B. I heard what the noble and learned Lord also had to say about Amendment No. 220E and his comparison of what he has put down with my own Amendment No. 220D.
There is only one small matter on which we have any significant difference. That is over the word "duration". Clearly in training there will be issues of how long courses might be and how fully they should be covered. What is behind my reluctance to
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accept the wording here is that I would not think it appropriate to give to the Law Society of Scotland too much of an indication that all methods of instruction should be of the same length.
For example, the training requirements of a solicitor who had been working in an Edinburgh firm with a large Court of Session practice, had also spent some time in the Crown Office and had appeared daily in the sheriff court, would be different from those which might be required of a relatively young and inexperienced solicitor who had worked mainly on conveyancing. I do not disagree fundamentally with what the noble and learned Lord says in Amendment No. 220E. I agree with what he says about the qualifications of those who will conduct any course of training, but, when we reach Amendment No. 220E, I should be inclined to resist it on those grounds.
The noble and learned Lord went a little further and mentioned Amendment No. 223, in which he is joined by the noble and learned Lords, Lord McCluskey, although he has now left the Committee, and Lord Morton of Shuna. The amendment states that the rules
"shall correspond as nearly as may be to those which apply to advocates".
I am sympathetic to what lies behind the amendment.
Lord Macaulay of Bragar: In view of the direction in which matters have moved and the major area of consensus between the noble and learned Lords the Lord Advocate and Lord Emslie, I welcome what has happened. We on this side of the Committee accept, as has been made clear all along, that there is a high standard to be attained in the Supreme Court. The Law Society and solicitors recognise that the practice in the Supreme Court requires different techniques and new knowledge and methods. Accordingly, we welcome the Government's acceptance of the amendment of the noble and learned Lord, Lord Emslie. I shall reserve my position on other related matters until I see the final shape of Clause 20 when the Bill returns on Report.
Lord Grimond: It might save the Committee's time if I spoke on this amendment instead of my Amendment No. 213, which is not grouped with it but attempts to deal with the same matter.
I drafted my amendment in the hope of probing why it is not possible for solicitors who wish to appear in the Supreme Court to become advocates. The noble Lord, Lord Macaulay, suggested the same idea on Second Reading. It struck me that one would save a great deal of trouble and responsibility for the Lord President if one assumed that a solicitor was sufficiently learned in the law, but needed extra practice in the high courts.
To my mind, the only way to learn how to be an advocate is to study with other advocates and to become a pupil. Advocacy is an art. There are horses for courses and it is impossible to train someone to be an advocate for all purposes. It is one of the great advantages of having the profession split into two bodies that the solicitor may choose an advocate

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who he thinks is particularly suitable for his purpose. In my lifetime I have known one distinguished lawyer who, when he reached the Bar, was hopeless before a jury, although very effective before a judge. I have known another man whose main claim to expertise in advocacy was that he was practically inaudible. He was particularly sought after in cases involving indecency, as the press could not hear a word he said.
Having mentioned those matters and as the Government intend to accept the amendment of the noble and learned Lord, Lord Emslie, I shall not move my amendment when it is eventually called.
Lord McCluskey: Perhaps I may intervene to say that I am happy that the Government have chosen to accept the amendment. It is perhaps unfortunate that the original print of the Bill did not contain something of this kind so that a good deal of upset might have been avoided.
I understand that we may not proceed beyond Amendment No. 222 tonight. If that is so I do not propose to say anything more now because my objections are of a different kind from those which have been discussed. I am not concerned ultimately with the qualifications or training of solicitors because many solicitors of my acquaintance are superb advocates. I am concerned with structural point'; which can be dealt with more sensibly when we discuss amendments which follow Amendment No. 222. I shall therefore not raise them tonight.
Lord Fraser of Carmyllie: I shall add a postscript to those remarks. While I understand that there is a proposal that we should stop at Amendment No. 222 perhaps I may modify that by suggesting that we go to Amendment No. 223 to which the noble and learned Lord, Lord Emslie, has spoken. I do so because I have indicated that I am sympathetic to that amendment and propose to return at Report with an amendment referring to the desirability of having essentially similar rules for all Supreme Court pleaders. I give that indication now and ask that when we come to that amendment it is withdrawn to enable me to do that.
Lord Macaulay of Bragar: It may be of assistance to the Committee if I say that I do not propose to move the amendments up to Amendment No. 223 which stand in my name and that of my noble friend Lord Carmichael as those matters are now covered by the amendment which has been accepted by the noble and learned Lord the Lord Advocate.
On Question, amendment agreed to.
[Amendments Nos. 212B to 220A not moved.]
Lord Emslie Lord Emslie: moved Amendment No. 220B:
Page 23, line 16, leave out ("or (3)") and insert ("in relation to the courts or, as the case may be, the court in which he seeks a right of audience").
On Question, amendment agreed to.
[Amendment No. 220C not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 220D:
Page 23, leave out lines 21 to 29 and insert—
("(a) the matters to be included in, the methods of instruction to be employed in, and the qualifications of the person who will conduct, any course of training such as is mentioned in subsection (2)(a); and
(b) the manner in which a solicitor's knowledge of the practice and procedure and professional conduct mentioned in subsection (2)(b) is to be demonstrated,
and separate rules shall be so made in relation to, on the one hand, the Court of Session, the House of Lords and the Judicial Committee of the Privy Council and, on the other hand, the High Court of Justiciary.").
On Question, amendment agreed to.
Lord Emslie Lord Emslie had given notice of his intention to move Amendment No. 220E:
Page 23, leave out lines 21 to 29 and insert—
("(a) the matters to be included in, the duration of and the methods of instruction to be employed in, and the qualifications of those persons who will conduct any course of training such as is mentioned in subsection (2)(a); and
(b) the manner in which a solicitor's knowledge of the practice and procedure and professional conduct mentioned in subsection (2)(b) is to be demonstrated,
and separate rules shall be so made in relation to, on the one hand, the Court of Session, the House of Lords and the Judicial Committee of the Privy Council and, on the other hand, the High Court of Justiciary.").
The noble and learned Lord said: In the light of the acceptance of the amendment proposed by the noble and learned Lord the Lord Advocate I shall not move my amendment. The difference between us is small and that difference will be taken up by common sense anyway.
[Amendment No. 220E not moved.]
[Amendments Nos. 221 and 222 not moved.]
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 223:
Page 23, line 32, at end insert ("which shall correspond as nearly as may be to those which apply to advocates.")
The noble and learned Lord said: I believe that the noble and learned Lord, Lord Emslie, has already spoken to the amendment. I beg to move.
Lord Fraser of Carmyllie: At two earlier points I indicated my sympathy for this amendment. Given that undertaking, I invite the three noble Lords whose names appear in support of the amendment not to pursue it.
Lord Emslie: I am very grateful to the noble and learned Lord the Lord Advocate for that expression of sympathy. I shall be even more grateful if that expression of sympathy is translated into action. In the light of what he has said, I am content to beg leave to withdraw the amendment at this time.
Lord Fraser of Carmyllie: May I say to the noble and learned Lord that it is not just an expression of sympathy. It is an indication that I will return on Report with an amendment to meet what he is proposing.
Lord: Emslie: I thank the noble and learned Lord very much.
Amendment, by leave, withdrawn.
The Earl of Strathmore and Kinghorne: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to. House resumed.

Consolidated Fund (No. 2) Bill
The Bill was brought from the Commons, endorsed with the certificate of the Speaker that the Bill is a Money Bill, and read a first time.

Birmingham City Council Bill [H.L.] {formerly Birmingham City Council (Miscellaneous Provisions Bill [H.L.])
Returned from the Commons agreed to with amendments; the amendments considered and agreed to.
House adjourned at sixteen minutes past eleven o'clock.